AI and IP: A Match Made in …?

The legal landscape around AI-assisted creative output is dynamic, but this much is clear as of mid-July?2025: AI and IP do NOT mix. Human creativity must drive the work for intellectual property protection to attach to the work.

The Court Says…

In Thaler v. Perlmutter (March?18,?2025), the D.C. Circuit ruled AI cannot be considered an author under U.S. copyright law. Authors are, by definition, human beings. Thus, the chimpanzee who paints cannot be considered an author; neither can your friendly AI bot. In this case, Dr. Stephen Thaler created an AI bot called the Creativity Machine. The Creativity Machine created a drawing, which Dr. Thaler submitted for copyright registration. He listed the Creativity Machine as the sole author of the piece with Dr. Thaler as merely the owner.

The Copyright Office denied the registration because the Copyright Act of 1976 requires that an author be human. Dr. Thaler asked the courts to reverse the Copyright Office’s decision.

The Court ruled that “The Creativity Machine cannot be the recognized author of a copyrighted work because the Copyright Act of 1976 requires all eligible work to be authored in the first instance by a human being.”

This is a ruling from a US Court of Appeals. Other US Courts of Appeals may differ in their opinions.

The next step, should Dr. Thaler choose to appeal and should they grant certiorari, would be the US Supreme Court.

Quick Analysis

This position is rooted in long-standing law. Never has an entity other than a human being been capable of becoming an “author.” Therefore, it stands to reason that a machine … an inanimate object … cannot be an “author.”

But wait. Apes are created by nature. Machines are created by human beings. While products of nature (like apes) cannot be, human beings CAN be “authors.” Therefore, does it make any sense to allow a machine … a human creation … to be an “author”?

Current Answer

The courts currently resoundingly say “NO.” An author is, and remains in the face of AI, a human being and only a human being. The creative spark for the work being copyrighted must contain a significant human element, and only that human-created part of the work can be protected by copyright.

For AI creations there is no protection.

This is a very active area of law. If you’re creating content using any AI machine and you want to protect that content, be sure to get legal advice as you proceed.

Run a small business? Be aware of this upcoming deadline!

The Corporate Transparency Act (CTA) most … not all … U.S. and foreign entities to file a Beneficial Ownership Information Report with the Financial Crimes Enforcement Network (FinCEN), a bureau of the U.S. Department of the Treasury.. This filing has a deadline, and failing to meet their deadline can cost you fines of up to $500.00 per DAY that you are late.

If your business existed as of 1 January 2024, you must file your BOIR before 1 January 2025;

If your business was created or registered to do business in the USA during the calendar year 2024, you must file your BOIR within 90 days after you receive your actual or public notice that the creation or registration is effective.

If your business is created or registered to do business in the USA on or after 1 January 2025, you must file your initial BOIR within 30 days after receiving actual or public notice that the creation or registration is effective.

You do not have to file a BOIR if your business falls into an exemption. Exemptions include:

1 Securities reporting issuer
2 Governmental authority
3 Bank
4 Credit union
5 Depository institution holding company
6 Money services business
7 Broker or dealer in securities
8 Securities exchange or clearing agency
9 Other Exchange Act registered entity
10 Investment company or investment adviser
11 Venture capital fund adviser
12 Insurance company
13 State-licensed insurance producer
14 Commodity Exchange Act registered entity
15 Accounting firm
16 Public utility
17 Financial market utility
18 Pooled investment vehicle
19 Tax-exempt entity
20 Entity assisting a tax-exempt entity
21 Large operating company
22 Subsidiary of certain exempt entities
23 Inactive entity

Note that if your company is a tax-exempt entity (i.e., a nonprofit granted tax exemption under the IRS Code or a similar entity) or if yours is an entity in business to assist tax-exempt entities, you do NOT have to file a BOIR.

Your deadline is coming up. If you find you cannot, or don’t want to, for whatever reason, get this done yourself, I’m happy to help you … for the currently-below-market price of $169.00. You’ll need to provide me with some personal information (birth date, EIN or Social Security number … .but let’s do EIN … business and residential addresses) and a .pdf or .jpg of your state-issued photo ID (passport, driver’s license, tribal ID).

You can schedule a time to meet with me to get your BOIR filed for only $169.00 by clicking here.

Copyright Office and the Music Modernization Act Audit Notice: If You’re a Musician, You Need to Know….

This email arrived today, January 24, 2024 from the US Copyright Office. I copy and paste it here verbatim.

“Today, the U.S. Copyright Office announces a new webpage devoted to audit notices under the Music Modernization Act (MMA). The new webpage provides instructions on how to submit MMA audit notices to the Office and will host copies of audit notices received by the Office. 

“Under the MMA, the mechanical licensing collective (MLC) may periodically audit digital music providers (DMPs) operating under the section 115 blanket license to verify the accuracy of royalty payments made by DMPs to the MLC. Likewise, musical work copyright owners may periodically audit the MLC to verify the accuracy of royalty payments made by the MLC to copyright owners. To commence an audit, a notice of intent to conduct an audit must be filed with the Copyright Office and delivered to the party(ies) being audited. The Office must then cause notice to be published in the Federal Register within forty-five days.”

USPTO Relaunches “Path to a Patent”

I got this email from the USPTO today, and I pass it along to you.

Path to a Patent quarterly series restarts January 12

Is your New Year’s resolution to file a patent? The United States Patent and Trademark Office’s (USPTO) eight-part recurring Path to a Patent series covers everything from intellectual property (IP) basics, to patent searching, to what you’ll need to draft and submit your patent application. 

This free, virtual series, which is hosted by USPTO regional officesstarts January 12 (2023) with the Path to a Patent, Part I: IP basics and will run through March 16.

Copyright and Public Domain Day 2023 … (Some of) The Best Things in Life Are (Now) Free!

Public Domain Day (which is always January 1) 2023 is the date on which all copyright protection in works that enter the public domain in 2023 expires.

Public domain works are works that have been released into the public domain by the copyright holder or, as with Public Domain Day, by the law of the country in which the work was created. This means that you can use these works without worrying about copyright infringement. Entry into the public domain, however, does not relieve you of the requirement to cite your source; even when that source is in the public domain, if you fail to cite, you plagiarize … and plagiarism gets you into academic honesty troubles.

Works entering the public domain this year include the last of the Sherlock Holmes stories, “The Jazz Singer,” and “The Best Things In Life Are Free” … together with “I Scream, You Scream, We All Scream for Ice Cream!”

Always be sure to get permission from the copyright holder if you plan to use a work in a way that requires their permission.

If you have any questions about copyright law or the public domain, call us at 518-371-4599 or schedule an appointment with us here.

How Do I … Register Copyright?

US copyright registration is done through the US Copyright Office. It is not done through the writers’ groups!! Yes, there is at least one writer’s group out there that you can register your work of authorship with, but that’s not copyright registration.

To actually register your copyright, you need to know a few things. First, you need to know what type of work of authorship this is. Is it a written work? A work of the visual arts? A musical work? A movie? Or is it some combination (movies contain music, for example).

Once you’ve got the type of work, you need to know who the author is. Maybe that’s you. Maybe it’s your employer. Maybe it’s someone else.

Then the Copyright Office’s registration bot leads you through a series of questions about the work and about the author … and about the speed with which you want the registration to process. Fair Warning: Unless you have some VERY specific reason, from a cost basis you do NOT want “special handling.” That raises your registration fee from less than $100 to well over $700. Don’t go there unless this work is on the courthouse steps being litigated.

After you’ve answered all of the Copyright Office’s questions, it’s time to pay them and submit your copies of the copyrighted work. They allow certain works to be electronically submitted; for others, you must mail two best copies to them. Yes, they give you a mailing label … which does not include postage. Also, remember to affix … as in staple or glue … the tracking tag to each copy you submit.

Once you ship the works off to the Copyright Office, you sit back and twiddle your thumbs until either you hear from the Office with questions for you or the registration certificate arrives in the mail. 

Put your registration certificate in a safe place. You’ll need it if you ever need to enforce your copyright.

Canadian Copyright Overhaul

Seems Canada is revamping its copyright laws. This is interesting, especially for visual artists in the collectors’ arena: the artist will be able to receive a portion of the sales proceeds from the sale of their works in some cases.

In most of the world, artists and authors receive royalties only for the first sale of their works or of authorized copies of their works (the “first-sale doctrine”). This means that once a work or authorized copy is sold, the artist or author has gotten his or her compensation for the work or authorized copy; the work is therefore free to be sold on the open market without bothering with paying again the artist or author.

This remains true in Canada (and in the rest of the world) for authors; you can still sell your copy of “Harry Potter” without paying J.K. Rowling a percentage of the sale price. Even a used bookstore can sell a used book without compensating the author, even if that copy of the book is a very collectable copy (a signed first edition, for example). But if artwork gets sold by a gallery or at auction, the artist cashes in if the sale is made in Canada.

Is this a good thing? That’s a “duh…yeah…” for the artist, especially for the collectable artist whose work sells for hundreds of thousands of dollars in the collectors’ market. If the artist is to receive a percentage of the sale (the Canadian group that represents artists, CARFAC, is pushing for a 5% royalty), the artist can end up profiting nicely from that work. But others may see this as the top of what can become a slippery slope. Why should artists and not authors benefit from this change? And, if authors also start to benefit, what happens when the law expands to the rare book collectors? Will they also have to pay a percentage to the author or the author’s estate until copyright expires?

Where does it end?

Understand, I’m all for artists and authors getting paid, and paid fairly, for their works of authorship; I’m just not convinced that this new law is the means by which to do that. Do I have another suggestion? Not really.

So we’ll wait and see what happens.

Copyright Claims Board Opens

The new Copyright Claims Board, or CCB, will hear certain copyright disputes involving claims of up to $30,000. Parties can now file a claim, opt out of a proceeding, reference CCB Handbook materials, and contact the CCB with questions on ccb.gov.

No one is required to argue a dispute before the CCB; If you have a copyright claim, you can choose to go to federal court instead, and your respondent, should you choose the CCB, can opt out of the CCB proceeding. If the respondent chooses to opt out, you can still bring a lawsuit against that respondent in federal court.

You don’t need a lawyer to appear before the CCB; they take pro se matters. However, as in any legal matter, you know the old adage about the lawyer representing him- or herself… The Board hears claims related to infringement, declarations of non-infringement, and claims of misrepresentation in notices sent under the Digital Millennium Copyright Act. Further, even if your claims fall within one or more of the categories the CCB can hear, if the claim is more than $30,000, the CCB cannot hear it; the case, if it cannot be resolved, must go to federal court.

All CCB matters are conducted online; you do not need to travel to Washington, DC (the home of the Copyright Office) to have your matter heard. Hearings are handled through video conferencing.

If you have a copyright dispute that falls within the parameters of what the CCB can hear, this three-member tribunal, whose members have extensive expertise in copyright matters, gives you a streamlined alternative to federal court proceedings. It is designed to be less expensive and faster than bringing a case in a federal court. However, like all arbitration-like processes, the CCB’s decision is final. Except for abuse of discretion claims (where the CCB tribunal members abuse their power in deciding a case), once the case is decided at the CCB, that’s the end of it. You cannot bring the matter in federal court.

This is a useful device the Copyright Office has established. It will help to lessen the caseloads on the civil dockets of the federal courts. It will lessen the expense of settling disputes. And it gives some consistency to copyright arbitration, which is currently conducted under the rules of each of the 13 federal court circuits … and yes, those rules differ.

For more information about copyright and other intellectual property matters, visit Delain Law Office’s website.

Competition Is Good…Even For Government Service Providers

The United States Patent and Trademark Office (USPTO) has FINALLY expanded the vendor pool to meet its patent production requirements. The agency believes that the added competition will lower prices. Those lower prices may save the agency an estimated $150 million over the next ten years. Who knows? Maybe some of that savings will dribble down to the inventors who use the agency to receive patent protection.

Lower prices engendered by competition may save the USPTO an estimated $150 million over the next ten years. 

The protection of intellectual property is the main goal of the USPTO. They are responsible for examining, issuing and maintaining the registrations of patents and trademarks in the United States. Sadly, they as a government agency have been … ahem … a bit lagging in encouraging free-market competition. They are historically not good at encouraging free market competition amongst their own providers.

Delain Law Office, PLLC is a boutique law firm that concentrates in helping inventors, authors and businesses navigate the intellectual property landscape. Thus, the USPTO’s use of only one vendor for any of its mission-critical work is a concern.

For the last 50 years, the USPTO knew of only one vendor capable of meeting the specified requirements for capturing patent data. After a thorough and exhaustive competition process and the execution of a new contract, the USPTO now says they are “…confident that the addition of a new vendor will provide USPTO with the added support it needs to continue to meet or exceed the quality and quantity requirements while also removing the risk of a single point of failure for mission critical work.”

This transition from a single vendor to a dual vendor environment, the USPTO claims, will result in agency cost savings per patent, thus allowing them to advance their work throughout the agency to better serve stakeholders. 

The USPTO claims they encourage competition in business. And, slowly, they are moving toward putting their money where their mouth is. This addition of a competing vendor for patent data capture is one small step; I’d like to see more vendors admitted to the Club.

And I can point to at least one other instance where the USPTO favored one private company to the exclusion of all others, in violation of any government encouragement of free-market competition I’ve ever heard of. Specifically, when they first started their online portal for patent document filing, they REQUIRED a Windows interface on the client (user … my) end. This went on for several years. I, however, was and remain a Mac shop. I therefore was REQUIRED to go out and get a Windows machine (Windows running on Mac did NOT work for this) so I could file patent documents. You better believe I complained about the government favoring one private enterprise over another … and, lo and behold, the USPTO now allows both Windows and Mac to talk to the patent filing system. I do not know whether they allow any other operating system to talk to their filing system; I hope they do.

Twist to Claiming Copyright Protection

Valancourt Books, LLC v. Perlmutter et al.

Well … it seems US District Judge Amy Berman Jackson, sitting in the US District Court for the District of Columbia (that would be in Washington DC) has added a new twist to the claiming of copyright protection. You have to register the work with the US Copyright Office to include notice of copyright protection in the work.

This could have … ahem … interesting fallout for things like websites and blogs.

You can read the opinion here.

Brief Background

Valencourt Books, LLC (“Valencourt”) is a very small (as in home-based), independent publisher that publishes rare, neglected, or out-of-print fictional works on demand. The works that Valencourt prints bear a copyright notice, but Valencourt does not register any copyright in the works it publishes with the US Copyright Office. Valencourt put copyright notice in its published books, but did not register that copyright and did not provide the Copyright Office with its requisite two copies. Under such circumstances, the Copyright Office takes the view that the claimant is claiming the protection of federal law without complying with the requirements of federal law. They can send out a demand letter and issue fines ranging from $250 per unregistered-but-claimed work to $2500 per unregistered-but-claimed work.

The Copyright Office issued its demand.

Valencourt replied that the requirement for copies runs afoul of the Takings Clause of the Fifth Amendment to the US Constitution and that no, it would not provide the requisite two copies to the Copyright Office because doing so was an undue burden on a very small business.

The Copyright Office, pre-litigation, countered this complaint by offering to accept electronic copies of the works, even though the works had been published (ordinarily, the Copyright Office requires printed copies to be provided for published works). However, Valencourt rejected the offer because they didn’t want any special treatment from the Copyright Office … the settlement proposed by the Copyright Office is an exception to the requirement and does not change the Office’s requirement for physical copies from other small publishers … and because the works were not already accessible in electronic format and getting them into that format would be an undue burden on Valencourt’s owners and employees.

Valencourt sued the US Copyright Office (Shira Perlmutter is the Register of Copyrights) claiming that the deposit requirement violates the First and Fifth Amendments to the Constitution. The Copyright Office countered with the claim that Valencourt was claiming copyright protection without complying with the requirements for that protection.

Valencourt alleges that the Copyright Office’s deposit requirement is an unconstitutional taking of private property because “…the government is demanding copies of publishers’ works for its own use without providing compensation to the affected parties.” Compl ¶ 1; Pl.’ Mom. at 18. Judge Jackson didn’t buy it. Citing Ruckelshaus v. Monsanto Co., 467 US 986, 1007 (1984), she explains that SCOTUS precedent establishes that “…a statute that confers a “benefit” [like copyright protection – comment added] on a citizen may condition the receipt of that benefit on the submission of private property in exchange without running afoul of the Takings Clause.” Slip Op. at 11. So … the Copyright Office can indeed “take” the two best copies of the work to be copyrighted in exchange for copyright protection without violating the Takings Clause. This is no surprise; deposits of copyrighted materials have been required since the first US copyright law came into existence in the 1790s.

Deposit Requirement and Free Speech

This section of the case contains no surprises. The deposit requirement is not subject to strict scrutiny because it is entirely … ENTIRELY … content-neutral. The deposit requirement does not attempt to limit speech; the requirement is the same for any work being registered regardless of the content of that work. Also, the burden imposed upon the copyright claimant by the deposit requirement is hardly unreasonable in relation to the benefit the requirement confers on the public.

Copyright, Registration, and Notice

The interesting part of the case is the issue of the copyright notice in publications that are not registered with the Office. The Court hides this in its discussion of the Takings Clause, but it’s important.

Valencourt includes copyright notice in its books and thus (1) informs the public that the works are copyrighted, (2) deters potential infringers, and (3) removes any innocent infringement defense. The claiming of copyright is just as voluntary as is the registration for copyright, and, since the enforcement of copyright protection is limited to those who have registered their works (see 17 USC 411), copyright in unregistered works cannot be enforced. Because plaintiff does not volunteer to register copyright in the works and certainly does not volunteer to send copies of the works to the Copyright Office, Plaintiff does not get to claim, by including notice of copyright in the published works, the benefits conferred by its notice of copyright.

This is huge. Just think of all those websites and blogs out there that have a copyright notice on them that are unregistered. Suddenly, it’s clear that the existence of the notice can trigger the demand letter from the Copyright Office and the subsequent fines.

Wow.