Case 1:22-cv-01564-BAH Document 24 Filed 08/18/23 Page 9 of 15
That principle follows from the plain text of the Copyright Act. The current incarnation of the copyright law, the Copyright Act of 1976, provides copyright protection to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 102(a). The “fixing” of the work in the tangible medium must be done “by or under the authority of the author.” Id. § 101. In order to be eligible for copyright, then, a work must have an “author.”
To be sure, as plaintiff points out, the critical word “author” is not defined in the Copyright Act. See Pl.’s Mem. at 24. “Author,” in its relevant sense, means “one that is the source of some form of intellectual or creative work,” “[t]he creator of an artistic work; a painter, photographer, filmmaker, etc.” Author, Merrian-Webster Unabridged Dictionary, https://unabridged.merriam-webster.com/unabridged/author (last visited Aug. 18, 2023); Author, Oxford English Dictionary, https://www.oed.com/dictionary/author_n (last visited Aug. 10, 2023). By its plain text, the 1976 Act thus requires a copyrightable work to have an originator with the capacity for intellectual, creative, or artistic labor. Must that originator be a human being to claim copyright protection? The answer is yes.[1]
The 1976 Act’s “authorship” requirement as presumptively being human rests on centuries of settled understanding. The Constitution enables the enactment of copyright and patent law by granting Congress the authority to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective
- ↑ The issue of whether non-human sentient beings may be covered by “person” in the Copyright Act is only “fun conjecture for academics,” Justin Hughes, Restating Copyright Law’s Originality Requirement, 44 Columbia J. L. & Arts 383, 408–09 (2021), though useful in illuminating the purposes and limits of copyright protection as AI is increasingly employed. Nonetheless, delving into this debate is an unnecessary detour since “[t]he day sentient refugees from some intergalactic war arrive on Earth and are granted asylum in Iceland, copyright law will be the least of our problems.” Id. at 408.
9
