The Ghost in the Latent Space
Authorship, Algorithmic Agency, and the Human Element in Generative Media
This treatise examines the constitutional and statutory requirement of human authorship under 17 U.S.C. § 102. By analyzing the procedural histories of Naruto v. Slater, Thaler v. Perlmutter, and the Copyright Office's Zarya of the Dawn registration, we construct an analytical framework for identifying where human expressive agency ends and mechanical automation begins.
I. The Constitutional Bedrock of Human Creation
Article I, Section 8, Clause 8 of the United States Constitution empowers Congress to promote the Progress of Science and useful Arts by securing to 'Authors' the exclusive Right to their respective Writings. For over two centuries, American courts have interpreted 'Author' as an intrinsically human entity.
In the 1884 landmark Burrow-Giles Lithographic Co. v. Sarony, the Supreme Court confronted photography — the emerging visual technology of its era. Skeptics argued the camera was a purely mechanical apparatus capturing physical photons. Justice Miller rejected this mechanistic view, holding that Napoleon Sarony was an author because he exercised expressive choice over pose, lighting, costume, and composition.
The crucial lesson of Burrow-Giles is that tools do not destroy authorship when humans use them to translate mental conceptions into visible form. However, machine learning foundation models invert this relationship: the user provides high-level semantic intentions (prompts), while the diffusion model or transformer executes all granular expressive choices.
II. The Lineage from Monkey Selfies to Neural Checkpoints
The modern exclusion of non-human creators crystallized in Naruto v. Slater (the 'Monkey Selfie' dispute). The Ninth Circuit affirmed that non-human animals lack statutory standing under the Copyright Act, holding that copyright protection extends exclusively to natural human persons.
When Dr. Stephen Thaler attempted to register an artwork created autonomously by his 'Creativity Machine' neural network (naming the machine as the author and himself as the assignee), the D.C. District Court and D.C. Circuit in Thaler v. Perlmutter unanimously affirmed the Copyright Office's refusal. Judge Howell held that human authorship is a foundational requirement at the core of American copyright.
III. The Zarya of the Dawn Threshold: Deconstructing the Hybrid Workflow
In 2023, the Copyright Office issued its definitive administrative precedent in the registration cancellation for Kristina Kashtanova's graphic novel 'Zarya of the Dawn'. The Office held that while the human author retained copyright over the text and the creative arrangement/compilation of the comic book panels, the individual Midjourney-generated images were uncopyrightable.
The Office's operational test hinges on 'predictable control': when a creator prompts an AI model, the process is akin to a client commissioning a human illustrator. The prompter does not direct the placement of every brushstroke or pixel; the model synthesizes latent space parameters probabilistically. Thus, prompt engineering alone lacks sufficient direct expressive execution to confer authorship.
Precedential Parallels Engine
Tracing modern AI copyright disputes back to their historical technological counterparts: cameras, VCRs, search crawlers, and software APIs.
Analytic Note: Parallels indicate similarity in underlying legal and technological mechanisms, not factual equivalence. These historical lineages illuminate how courts historically adapted copyright doctrines to technological shocks.
When photography was challenged as purely mechanical recording incapable of human authorship, SCOTUS held that mental conception, staging, lighting, and posing supply the requisite creative spark.
“Photographs are useful, new, harmonious, characteristic, and graceful pictures, so far as they are representatives of original intellectual conceptions of the author.”— 111 U.S. 53 (1884)
Judges are now evaluating whether prompt engineering, ControlNet constraints, and seed manipulation constitute the modern equivalent of Sarony's manual lighting and drapery arrangement.