📝 Continuing My Ongoing Posts on the CO’s Push Into “Non‑Copyrightable” Territory
As many of you have seen from my recent posts, the Copyright Office is drilling deeper into the exact categories of things it says cannot be copyrighted, effectively usurping the battle before litigants ever reach the courthouse. Three recent matters outline the issue.
📸 Monkey Selfie Rule
In Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018), the court held that a macaque cannot be an author, so the “monkey selfie” had no copyright. The Act protects human creativity, not works created by animals.
🤖 AI Cannot Be the Author (Thaler)
In Thaler v. Perlmutter, 2023 WL 5333236 (D.D.C. Aug. 18, 2023), aff’d No. 23‑5233 (D.C. Cir. 2024), the Copyright Office properly denied a registration where the applicant listed his AI system as the sole author. The courts confirmed that the Act requires human authorship, and any application naming AI as the author must be refused.
🎨 Théâtre d’Opéra Spatial (Midjourney) — Human Input Is Not Enough
In the Théâtre d’Opéra Spatial decision, the CO held that extensive prompting, curation, and iterative refinement in Midjourney does not create human authorship in the resulting images. Because the AI system determines the final expressive output, the images themselves are not copyrightable, even though the human provided direction.
Citation: U.S. Copyright Office Review Board, Zarya of the Dawn and Théâtre d’Opéra Spatial decisions (2023).
🔗 And That’s Exactly Why Filing Is Now Treacherous
With the CO drawing hard lines around nonhuman authorship, IMHO, the safest path is to claim only the human contributions and disclaim the AI output. When a human writes the lyrics and melody, performs the song, and directs AI to generate derivative audio and video, the filing path is straightforward.
🎼 PA: Claim “Human authorship in lyrics, melody, and musical composition.” Disclaim “AI generated material.”
🎧 SR: Claim “Human authorship in performance, production, editing, and selection of recorded elements.” Disclaim “AI generated audio.”
🎬 VA: Claim “Human authorship in the creation of the storyboard, scene order, pacing, editing, timing, and selection of visual elements; human authorship in original photographs.” Disclaim “AI generated animation or AI generated visual material.”
🧭 Bottom Line
Claim the human authorship. Disclaim the AI output. Across all three matters, the rule is consistent: humans create copyright; AI does not.