Page:Thaler v. Perlmutter, Reply in Support of Cross-Motion for Summary Judgment.pdf/11

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Case 1:22-cv-01564-BAH Document 21 Filed 04/05/23 Page 11 of 15

that several of the factors the Supreme Court has used to determine whether someone is an employee cannot apply to a machine. See id. at 9; see also Dkt. 17 at 22–23 (discussing factors laid out in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)).

Plaintiff’s other argument, that rights in the Work were transferred to him, is equally unavailing. See Dkt. 18 at 10–11 (referencing Dkt. 16 at 20–24). Ownership of a copyright is generally transferred through a signed written agreement. See 17 U.S.C. § 204(a). Perhaps because Plaintiff and the “Creativity Machine” could not enter into such an agreement, see Section I.A supra, Plaintiff claims that he gained copyright ownership “by operation of law” under common-law property principles. Dkt. 18 at 11; see also § 204(a). Plaintiff recognizes (Dkt. 16 at 20) that the transfer of copyright by operation of law typically involves circumstances such as intestate succession, where it is impossible for the deceased to sign a written agreement, or distribution of copyrights from a dissolving corporation, where other documents related to the transaction demonstrate the intended transfer. In an attempt to fit the facts here within this framework, Plaintiff points to common-law principles that relate to physical property. See, e.g., Dkt. 16 at 20–24 (referencing “fruit of the tree” and right of first possession). Unsurprisingly, Plaintiff cites no case in which these principles have been applied to a transfer of copyright ownership.^[1] Plaintiff also fails to explain why common law property principles would not be preempted by the Act. See Dkt. 17 at 21, n.15.

↑ One of the many reasons that the law treats physical and intellectual property differently relates to concerns surrounding not only ownership but lack of ownership. Clarifying ownership in real property is important not just to avoid disputes, but also to establish who is responsible for caring for the property. By contrast, unowned expressive works reside in the public domain. See, e.g., Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984).

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[1] One of the many reasons that the law treats physical and intellectual property differently relates to concerns surrounding not only ownership but lack of ownership. Clarifying ownership in real property is important not just to avoid disputes, but also to establish who is responsible for caring for the property. By contrast, unowned expressive works reside in the public domain. See, e.g., Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984).

[1]