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TikTok Makes It Out of West Texas to Sunny Northern California

by Kathleen Lynch | Nov 16, 2023 | Copyrights

The US Court of Appeals for the Fifth Circuit granted a writ of mandamus ordering the transfer of a case, finding that the district court’s denial of the motion to transfer “was so patently erroneous” that the extreme measure was appropriate. In re TikTok, Inc., Case No. 23-50575 (5th Cir. Oct. 31, 2023) (Smith, Southwick, Wilson, JJ.)

In the underlying case, Beijing Meishe Network Technology Co. sued TikTok in the US District Court for the Western District of Texas, alleging infringement, trade secret misappropriation and false advertising. All claims stemmed from the theory that a former Meishe employee disclosed copyrighted source code for video and audio editing software to TikTok, which TikTok then implemented into its app. Meishe and TikTok are Chinese companies, and both the alleged disclosure and TikTok’s alleged code implementation occurred in China, assisted by TikTok engineers in California. TikTok has no engineers in Texas but does maintain a business office there, although not within the Western District.

TikTok moved under 28 U.S.C. § 1404 to transfer the case to the Northern District of California. The district court took 11 months to rule on the motion, and in the meantime the case continued through discovery. After the district court denied the motion, TikTok petitioned the Fifth Circuit for a writ of mandamus.

The sole issue on mandamus was the propriety of the district court’s refusal to transfer venue. To succeed on a writ of mandamus, a petitioner must satisfy the reviewing court regarding the following questions:

Are there other ways to obtain the desired relief?
Is the reviewing court’s right to issue the writ “clear and indisputable”?
Is the writ appropriate, given the circumstances?

The Fifth Circuit focused on the second question, its right to issue the writ. In the Fifth Circuit, the 2008 en banc In re Volkswagen case mandates an eight-factor test that a district court must consider in deciding a § 1404 transfer motion. No one factor is dispositive, and the Fifth Circuit has cautioned against tallying the yes/no results or denying transfer just because most factors are neutral. Unsurprisingly, in the 15 years since Volkswagen, district courts applying these factors have reached inconsistent results. Even the Fifth Circuit has reached “conflicting outcomes” when reviewing these cases. The Fifth Circuit therefore took the opportunity to address each factor.

The Fifth Circuit found that two factors weighed in favor of transfer:

The relative ease of access to sources of proof
The cost of attendance of willing witnesses

Regarding ease of access to proof, the Fifth Circuit clarified that factfinders analyze “relative ease of access, not absolute ease of access” to documents and other physical evidence. The district court had determined that this factor was neutral, given that most documentation was electronic. The Fifth Circuit disagreed, explaining that while the source code was electronically stored, it was protected by a high level of security clearance. Only certain TikTok employees based in California and China were able to access the code. Using the relative metric, [...]

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A Step Forward for Choreography and Copyright

by Karen Gover | Nov 16, 2023 | Copyrights

In a rare ruling on infringement of a copyright on choreography, the US Court of Appeals for the Ninth Circuit reversed the dismissal of a copyright infringement action, holding that the district court erred in its application of the substantial similarity standard in terms of the line between animation and choreography, and remanded for further proceedings. Hanagami v. Epic Games, Inc., Case No. 22-55890 (9th Cir. Nov. 1, 2023) (Murguia, C.J.; Paez, Nguyen, JJ.)

Kyle Hanagami, a Los Angeles-based choreographer with a substantial social media following, brought this action against Epic Games, creator of the blockbuster video game Fortnite. Hanagami alleged that Epic infringed his copyrighted choreography by incorporating a portion of his dance work into a virtual animation, known as an “emote,” that players can purchase for video game avatars to perform. Hanagami has created choreography for famous pop stars and globally recognized brands. The five-minute choreographic work at issue in this action was originally published on YouTube in November 2017 and had received almost 36 million views as of Hanagami’s original March 2022 complaint.

In August 2020, Epic released a version of Fortnite that included a new emote called “It’s Complicated.” The allegedly copied choreography consisted of a two-second combination of eight bodily movements set to four beats of movement, which Hanagami alleged “contain[ed] the most recognizable portion” of his choreography. Hanagami brought federal claims alleging direct and contributory infringement of a copyright, as well as a state law unfair competition claim.

The district court granted Epic’s motion to dismiss wherein Epic asserted that Hanagami had not plausibly alleged that the Fortnite emote displayed “substantial similarity” to his choreographic work. Hanagami appealed.

At issue in this appeal was whether the district court had properly applied the Ninth Circuit’s two-part test for substantial similarity in assessing Hanagami’s infringement allegations. The first part, called the “extrinsic test,” focuses only on the protectable elements of the plaintiff’s expression and assesses the objective similarities between the original and the allegedly infringing work. The second part, referred to as the “intrinsic test,” gauges similarity of expression from the perspective of the ordinary reasonable observer and is reserved for the trier of fact. Hence, at the pleadings stage, only the extrinsic test is applied.

The Ninth Circuit concluded that the district court erred in its application of the extrinsic test in two ways. First, the district court incorrectly analyzed Hanagami’s choreography as a series of unprotectable “poses,” rather than as a movement sequence that includes expressive elements such as body position, timing, use of space, energy, pauses and repetition. The Court explained that when a dance work is properly analyzed as a selection and arrangement of movements, Hanagami “plausibly alleged that the creative choices he made in selecting and arranging elements . . . are substantially similar to the choices Epic made in creating the emote.” Second, the district court erred in dismissing Hanagami’s claim because the choreography in the emote was “short” and a “small component” of the original work. The Ninth Circuit [...]

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All the Way Up to the Second Circuit, and Back

by Vincent Li, PhD | Nov 16, 2023 | Copyrights

The US Court of Appeals for the Second Circuit vacated a grant of summary judgment made prior to discovery, holding that the district court abused its discretion in finding a draft contract agreement admissible under Federal Rule of Evidence (FRE) 1003 notwithstanding sworn testimony questioning its contents. Eric A. Elliott, aka Fly Havana v. Joseph Anthony Cartagena et al., (2d. Cir. Oct. 17, 2023) (Merriam, Nardini, JJ.)

The dispute in this case centered on whether Eric Elliott was properly credited and compensated for his contribution in writing the song “All the Way Up.” Both Elliott and Joseph Anthony Cartagena (also known as “Fat Joe”) acknowledged that Elliott had signed an agreement regarding the song, but both parties were unable to locate the original agreement. Instead, Cartagena submitted a draft that he claimed was an authentic duplicate. This draft purported to assign all of Elliott’s rights to the song to an entity.

Elliott disputed the authenticity of the draft, claiming that there were numerous additional and different material terms in the agreement he signed. Nonetheless, the district court found the evidence admissible under FRE 1003 and 1004 and entered summary judgment in favor of defendants prior to discovery being conducted in the case. Elliot appealed.

The Second Circuit concluded that the district court abused its discretion and vacated. FRE 1002, also known as the “best evidence rule,” states that “[a]n original writing . . . is required in order to prove its content unless these rules or a federal statute provides otherwise.” If an original document is unavailable, a duplicate may still be admissible under FRE 1003, which states: “A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.”

Here, the district court relied on Cartagena’s sworn testimony that he printed the draft at the complex where he lived and brought it with him to a meeting with Elliott. The district court disregarded Elliott’s sworn testimony in response to Cartagena, which suggested that the draft was not identical to the version Elliott signed. While the draft specified that the rights to the song would be assigned to an entity, Elliott averred that the version he signed “seemed to state that [he] was going to be compensated and credited as a writer.” Given this factual dispute, the Second Circuit held that the district court abused its discretion in admitting the draft as a duplicate under FRE 1003 and granting summary judgment, particularly without the benefit of discovery.

The Second Circuit concluded that there was a genuine factual dispute as to whether Elliott validly assigned all his rights and whether any such purported assignment precluded Elliott’s claims. Given the issues regarding the authenticity of the draft and the genuine dispute of material fact, the Court found summary judgment improper.

However, a duplicate may also be admissible under FRE 1004, which states: “[a]n original is not required and other evidence of the content [...]

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Tenth Circuit Contributes Clarity to Contributory Liability in Copyright Infringement

by Eleanor B. Atkins | Nov 9, 2023 | Copyrights

Addressing the elements of contributory copyright infringement, the US Court of Appeals for the Tenth Circuit found that a plaintiff had plausibly alleged contributory copyright infringement when he alleged that the defendants had “caused, materially contributed to, or authorized the direct infringement” of his copyrights. Greer v. Moon, et al., Case No. 21-4128 (10th Cir. Oct. 16, 2023) (Bachrach, Moritz, Rossman, JJ.)

Joshua Moon owns and operates the controversial website, Kiwi Farms, “a site ‘built to exploit and showcase those Moon and his users have deemed to be eccentric and weird,’ [m]any of [whom] are physically or mentally disabled.” Russell Greer, who suffers from a form of facial paralysis, was targeted by Kiwi Farms users after Greer sued Taylor Swift in 2016. In 2017, Greer wrote a book to “explain his side of things,” titled “Why I Sued Taylor Swift and How I Became Falsely Known as Frivolous, Litigious and Crazy,” which he published and copyrighted. In 2019, Greer registered his copyright for his song, “I Don’t Get You, Taylor Swift.” Greer alleged that Kiwi Farms users infringed both works by creating and uploading unauthorized audio recordings of the book, posting links to a full copy of the book on the Kiwi Farms platform and uploading his song to the Kiwi Farms website.

Pursuant to the Digital Millennium Copyright Act, Greer sent Moon a takedown notice, identifying the infringing materials and the location of those unauthorized copies. In response, Moon published the takedown notice and Greer’s contact information on Kiwi Farms and responded to Greer via an email in which Moon “derid[ed]” Greer and refused to remove the copyrighted materials. Shortly thereafter, Greer sued Moon and Kiwi Farms for contributory copyright infringement, among other things. The district court granted the defendants’ motion to dismiss for failure to state a claim, and Greer appealed.

The Tenth Circuit explained that there are “three flavors of secondary liability for copyright infringement”:

Vicarious liability, when a secondary infringer has a financial interest in the exploitation of the copyrighted materials and the ability to supervise the direct infringer
The inducement rule, when the secondary infringer distributes a device that is intended to be used for copyright infringement
Contributory liability, when the secondary infringer “causes or materially contributes to” the direct infringer’s activities.

Greer’s claims were based on contributory liability, which occurs when there is direct infringement of a plaintiff’s copyrighted material(s), the defendant had knowledge of the direct infringement and the defendant “intentionally caused, induced, or materially contributed to the direct infringement.”

There was no dispute that Greer’s pro se complaint met the first two prongs of the test. The district court granted the defendants’ motion to dismiss because it found that Greer failed to plausibly plead the third element of contributory infringement: “It is not enough for contributory liability for a defendant to have merely permitted the infringing material to remain on the website, without having induced or encouraged the initial infringement” (internal quotations omitted).

The Tenth Circuit dismissed the district court’s [...]

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Standard Practice: The Public Has Right to Copyrighted Material Incorporated Into Law

by Jake B. Vallen | Sep 28, 2023 | Copyrights

In a case that attracted a slew of amicus curiae participation and was the most recent in the series of American Society for Testing and Materials (ASTM) copyright cases, the US Court of Appeals for the District of Columbia Circuit affirmed the district court’s holding that the noncommercial dissemination of standards, as incorporated by reference into law, constitutes fair use and thus does not support liability for copyright infringement. Am. Soc’y for Testing & Materials v. Public.Resource.Org, Case No. 22-7063 (DC Cir. Sept. 12, 2023) (Henderson, Pillard, Katsas, JJ.)

The ASTM and the other plaintiffs are private organizations that develop and promulgate standards for establishing best practices for their respective industries or products. In 2013, they brought an action for copyright infringement against Public.Resource.Org for posting their copyrighted standards (as they were referenced in agency rulemaking and incorporated into law) on its website, thereby making these materials available to the public at no cost. After the district court initially granted ASTM’s motion for summary judgment of copyright infringement and rejected Public Resource’s fair use defense, the DC Circuit reversed and remanded for further consideration the issue of whether posting the incorporated standards constituted fair use. Subsequently, the district court “found fair use as to the posting of standards incorporated into law and infringement as to the standards not so incorporated.” The plaintiffs appealed.

On appeal, the DC Circuit analyzed the following fact-intensive fair use factors:

The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
The nature of the copyrighted work
The amount and substantiality of the portion used in relation to the copyrighted work as a whole
The effect of the use upon the potential market for or value of the copyrighted work.

The DC Circuit concluded that the first three factors strongly favored holding that Public Resource’s posting of the incorporated standards constituted fair use. As to the first factor, the Court explained that in a manner similar to the one discussed by the Supreme Court of the United States in its 2021 Google v. Oracle Am. case, Public Resource’s use was for nonprofit, noncommercial educational purposes. The DC Circuit further found Public Resource’s use transformative in that it served different purposes than ASTM’s use (“provide[ing] the public with a free and comprehensive repository of the law” versus “producing standards reflecting industry or engineering best practices.”)

As to the second factor, the DC Circuit reasoned that the “nature of the copyrighted work” heavily favored fair use because the standards “fall at the factual end of the fact-fiction spectrum” and “have legal force, [such that] they . . . fall ‘at best, at the outer edge of copyright’s protective purposes.’” As to the third factor, the Court found that it strongly supported fair use because the standards had been incorporated and thus had “the force of law.”

With respect to the fourth factor, the DC Circuit recognized that Public Resource’s [...]

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Tragic Ending: Award-Winning AI Artwork Refused Copyright Registration

by Amol Parikh | Sep 21, 2023 | Copyrights

The US Copyright Office (CO) Review Board rejected a request to register artwork partially generated by artificial intelligence (AI) because the work contains more than a de minimis amount of content generated by AI and the applicant was unwilling to disclaim the AI-generated material. Second Request for Reconsideration for Refusal to Register Théâtre D’opéra Spatial (Copyright Review Board Sept. 5, 2023) (S. Wilson., Gen. Counsel; M. Strong, Associate Reg. of Copyrights; J. Rubel Asst. Gen. Counsel).

In 2022, Jason Allen filed an application to register a copyright for a work named “Théâtre D’opéra Spatial,” reproduced below.

The artwork garnered national attention in 2022 for being the first AI-generated image to win the Colorado State Fair’s annual fine art competition. The examiner assigned to the application requested information about Allen’s use of Midjourney, a text-to-picture AI service, in the creation of the work. Allen explained that he “input numerous revisions and text prompts at least 624 times to arrive at the initial version of the image.” He went on to state that after Midjourney created the initial version of the work, he used Adobe Photoshop to remove flaws and create new visual content and used Gigapixel AI to “upscale” the image, increasing its resolution and size. As a result of these disclosures, the examiner requested that the features of the work generated by Midjourney be excluded from the copyright claim. Allen declined to exclude the AI-generated portions. As a result, the CO refused to register the claim because the deposit for the work did not “fix only [Mr. Allen’s] alleged authorship” but instead included “inextricably merged, inseparable contributions” from both Allen and Midjourney. Allen asked the CO to reconsider the denial.

The CO upheld the denial of registration, finding that the work contained more than a de minimis amount of AI-generated content, which must be disclaimed in a registration application. The CO explained that when analyzing AI-generated material, it must determine when a human user can be considered the “creator” of AI-generated output. If all of a work’s “traditional elements of authorship” were produced by a machine, the work lacks human authorship and the CO will not register it. If, however, a work containing AI-generated material also contains sufficient human authorship to support a claim to copyright, then the CO will register the human’s contributions.

Applying these principles to the work, the CO analyzed the circumstances of its creation, including Allen’s use of an AI tool. Allen argued that his use of Midjourney allowed him to claim authorship of the image generated by the service because he provided “creative input” when he “entered a series of prompts, adjusted the scene, selected portions to focus on, and dictated the tone of the image.” The CO disagreed, finding that these actions do not make Allen the author of the Midjourney-created image because his sole contribution was inputting the text prompt that produced it.

The [...]

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Copyright Office Seeks Comments on Artificial Intelligence

by Amol Parikh | Sep 21, 2023 | Copyrights

The US Copyright Office (CO) issued a notice, seeking comments on copyright law and policy issues raised by artificial intelligence (AI) systems. Artificial Intelligence and Copyright, 88 Fed. Reg. 59942 (Aug. 30, 2023).

The purpose of the notice is to collect factual information and views relevant to the copyright law and policy issues raised by recent advances in generative AI. The CO intends to use this information to advise Congress by providing analyses on the current state of the law, identifying unresolved issues and evaluating potential areas for congressional action. The CO will also use this information to inform its regulatory work and to offer resources to the public, courts and other government entities considering these issues. The questions presented in the notice are grouped into the following categories:

General high-level questions
AI training, including questions of transparency and accountability
Generative AI outputs, including questions of copyrightability, infringement and labeling or identification of such outputs
Other issues related to copyrights.

The specific questions can be found in the notice. Given the importance of using shared language when discussing AI, a glossary of terms is also provided, on which commentators can provide feedback. The CO indicated that it does not expect every party choosing to respond to the notice to address every question raised. Instead, the questions are designed to gather views from a broad range of stakeholders.

Written comments are due no later than 11:59 pm (EDT) on October 18, 2023. Written reply comments are due no later than 11:59 pm (EST) on November 15, 2023.

It’s a Taking: Copyright Deposit Requirement Violates Fifth Amendment

by Eleanor B. Atkins | Sep 7, 2023 | Copyrights

Addressing the issue for the first time, the US Court of Appeals for the District of Columbia found that the Copyright Act of 1976’s requirement to deposit two copies of a work with the Library of Congress within three months of the work’s publication was unconstitutional under the Fifth Amendment’s Takings Clause. Valancourt Books, LLC v. Merrick B. Garland and Shira Perlmutter, Case No. 21-5203 (D.C. Cir. Aug. 29, 2023) (Srinivasan, Henderson, Edwards, JJ.)

Valancourt Books is a small business in Richmond, Virginia, which publishes rare and out-of-print fiction on an on-demand basis (i.e., in response to a specific customer request). Despite never having sought copyright registration for any of its works, Valancourt received a letter in 2018 from the US Copyright Office (CO) demanding a complete copy of 341 books published by Valancourt “for the use or disposition of the Library of Congress.” Failure to comply would subject Valancourt to fines of up to $250 per work plus the total retail price of the copies and an additional $2,500 for repeated failure to comply. Valancourt responded that it could not afford to submit copies of all the requested works, noting that some of the works contained material in the public domain and offering instead to sell copies of the works to the CO at cost. In response, the CO narrowed the list of requested copies to 240 works.

Valancourt sued seeking a declaration that the application of Section 407 of the Copyright Act is unconstitutional under the First and Fifth Amendments and an injunction against its enforcement. The CO offered Valancourt the option to electronically submit the deposits, but Valancourt declined. The parties both moved for summary judgment. After considering whether the CO’s offer to accept electronic copies had mooted the dispute, the district court concluded that the CO’s offer had merely narrowed the dispute to one of electronic deposit copies and granted summary judgment to CO on the constitutional claims. Valancourt appealed.

Valancourt challenged the district court’s grant of summary judgment on Valancourt’s First and Fifth Amendment claims and the district court’s conclusion that the dispute had been limited to one about electronic copies. The DC Circuit agreed, stating that the CO’s “offer did not moot Valancourt’s challenge to the demand for physical copies” because “[a] party’s voluntary cessation of challenged conduct does not moot the challenged [requirement] unless it is ‘absolutely clear’ that the challenged conduct will not recur after the litigation.” Accordingly, the Court considered only the demand for physical (rather than electronic) deposits.

With respect to Valancourt’s constitutional challenges, the DC Circuit concluded that Section 407’s requirement for physical deposit copies violated the Fifth Amendment’s Takings Clause as there was no benefit received by the copyright owner in response to the deposit: “A demand for personal property would not be a taking . . . if it involved a voluntary exchange for a governmental benefit.” In this case, however, no such benefit existed. Pursuant to the Copyright Act, copyright attaches automatically upon fixation of a [...]

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Rimini, Meeny, Miny, Moe: Ninth Circuit Affirms Most PI Violation Findings, Reverses Others

by Kathleen Lynch | Sep 7, 2023 | Copyrights

Addressing the boundaries of a permanent injunction awarded to a major software developer, the US Court of Appeals for the Ninth Circuit largely agreed that the defending developer was in contempt for violating the order but reversed on certain issues where the district court overextended the injunction. Oracle USA, Inc. v. Rimini St., Inc., Case No. 22-15188 (9th Cir. Aug. 24, 2023) (Bybee, Bumatay, JJ.; Bennett, Dist. J., sitting by designation).

Oracle creates enterprise software to carry out business functions. Oracle’s customers buy licenses to its products, which require updates and technical support. These necessary support services can be outsourced to third-party vendors, such as Rimini.

This case is the byproduct of a 13-year battle that Oracle initiated on the grounds that Rimini’s support services constituted copyright infringement. Rimini made generic versions of Oracle software on Rimini computers to develop updates and bug fixes (local hosting) and supported clients by using development environments created pursuant to a different client’s license (cross-use). After multiple appeals and remands, the case resulted in a permanent injunction prohibiting Rimini from reproducing or cross-using Oracle software unless pursuant to a customer license. Rimini revamped its support services and sought a declaratory judgment of noninfringement. After Oracle was permitted to conduct discovery into potential violations of the injunction, the district court held a bench trial on 10 possible violations. The district court found Rimini in contempt for five of the 10 alleged violations (issues 1–4 and 8). On two others (issues 7 and 9), the district court found no contempt but enjoined Rimini from continuing a specific copying practice. The district court sanctioned Rimini $630,000, calculated according to statutory damages available under the Copyright Act.

Rimini appealed each contempt finding, the injunction and the sanctions.

First, the Ninth Circuit addressed the five contempt findings, sorted into three groups:

Local hosting (issue 1)
Cross-use (issues 2–4)
Database copying (issue 8).

On issue 1, the Ninth Circuit affirmed. The lower court had found that Rimini received copyrighted files from its clients. Instead of following internal policies requiring them to quarantine or report these files, Rimini employees forwarded and saved them locally. Based on the plain language of the PI, this was a clear violation.

On issues 2–4, regarding cross-use, the Ninth Circuit also affirmed. Rimini used one client’s environment to modify and test updates that the client did not need and were intended for other clients. Since the injunction specifically prohibited cross-use, this was a violation. Rimini lodged multiple failed arguments, including that the injunction only prohibited cross-use in “generic” (non-client) environments, so its use of one client’s environment to support another client was allowed. The Court disagreed that the injunction was so specific.

On issue 8 (database copying), however, the Ninth Circuit reversed. The district court held Rimini in contempt for making copies of an Oracle database file on Rimini systems. When the client uploaded the file to Salesforce for Rimini to provide technical assistance, a copy was automatically created on Rimini’s system. Here, the [...]

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Almost Paradise? No Authorship for AI “Creativity Machine”

by Kavya Rallabhandi | Aug 31, 2023 | Copyrights

The US District Court for the District of Columbia agreed with the US Copyright Office’s denial of a copyright application that sought to register visual art generated by artificial intelligence (AI) because US copyright law only protects works of human creation. Thaler v. Perlmutter, Case No. CV 22-1564 (D.D.C. Aug. 18, 2023) (Howell, J.)

The Copyright Act of 1976 provides immediate copyright protection to any work of authorship fixed in any tangible medium of expression. Applicants may submit their works to the Copyright Office for registration, during which works are reviewed for eligibility for copyright protection. the Copyright Office then registers eligible works, affording the registration owner certain legal benefits and presumptions.

Stephen Thaler, the owner of an AI computer system called the “Creativity Machine,” claimed that his AI independently generated the below visual art entitled “A Recent Entrance to Paradise.”

Thaler sought to register the work with the Copyright Office. The copyright application described the art as “autonomously created by a computer algorithm running on a machine,” identified the Creativity Machine as the author and listed Thaler as the copyright claimant under the work-for-hire doctrine. The Copyright Office denied Thaler’s application because the work lacked human authorship, which is an essential element of a valid US copyright. Thaler twice requested reconsideration of the copyright application, and the Copyright Office twice refused to register the work because of the human authorship requirement. Thaler timely appealed the Copyright Office’s denial to the District Court for the District of Columbia, and both parties moved for summary judgment.

Under the authority of the Administrative Procedure Act, the district court reviewed the Copyright Office’s final agency action through the arbitrary and capricious standard of review (5 U.S.C. § 704). The district court first analyzed whether the AI computer system could own the copyright, then determined whether Thaler was a proper claimant under the work-for-hire doctrine. The district court held that the Copyright Office did not err in denying Thaler’s copyright registration application because US copyright law only protects works of human—not machine—creation. Although copyright law was designed to adapt with the times, the district court stated that there is an underlying and consistent understanding that human creativity is the driving force of copyrightability. While the tools humans use to create copyrightable works (fixed in tangible mediums) are ever evolving and range from pencils to computers, human authorship is a bedrock requirement to copyrightability such that the tools themselves cannot be listed as copyright authors. The district court further held that the plain text of the 1976 Copyright Act requires human authorship since it states that the originator of the copyrightable work must have the capacity for intellectual, creative or artistic labor—a standard that AI has yet to meet. Because AI computers cannot be copyright authors, the district court did not address the work-for-hire analysis.

[...]

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