Of Blood and Copyright

Famed sportswriter “Red” Smith was once asked how easy it was to author a regular column. He replied, “You simply sit down at the typewriter, open your veins, and bleed.” The Copyright Office uses similar criteria when evaluating whether to register works that involve some element of cutting-edge technology.

In U.S. jurisprudence, the question of when technology supplants human creativity stems from English common law, specifically the 1883 case of Nottage v. Jackson. At issue, there was a photograph of an Australian cricket team. The defendant claimed that this new-fangled photography tech was simply the unthinking reproduction on paper of natural objects and/or natural people. The Master of the Rolls, however, qualified the photograph as a work with a supervisor who decided the contents of the picture, where people would be positioned in relation to one another, and the location of the photo—all creative elements that arose from a living, breathing human.

This case informed Burrow-Giles Lithographic Co v. Sarony, the 1884 decision wherein a lithographer copied a photograph of Oscar Wilde. In this U.S. precedent, SCOTUS made the same finding: where a work represents the “original intellectual conceptions of [an] author,” an author being human, there is copyright. Fast-forward 138 years and the Copyright Office is still quoting Burrow-Giles, but this time in connection with Artificial Intelligence, and this time finding no copyright.

Within the last year, the Copyright Review Board rendered its opinion in Second Request for Reconsideration for Refusal to Register A Recent Entrance to Paradise. There, Steven Thaler argued that restricting copyright to human authorship was unconstitutional and unsupported by case law. The Copyright Office was quick to cite Burrow-Giles, as well as Urantia Found. v. Kristen Maaherra (stating that copyright doesn’t protect a book by co-called “divine beings”), Naruto v. Slater (photos by non-human primates aren’t copyrightable), and Kelley v. Chicago Park Dist. (refusing to register copyright in a garden that owes most of its form and appearance to natural forces).

A Recent Entrance to Paradise was “autonomously created by a computer algorithm running on a machine,” and consequently refused registration. Without the human element, there were no veins to open, no one to bleed, no copyright.