Among the hot topics of copyright law, there is an open question ripe for legal speculation: is the output of artificial intelligence (AI) copyrightable?

Copyright protects original works of authorship fixed in a tangible medium of expression. The debate continues as to whether the authorship and originality of the output that is created by AI is attributable to the AI itself or the AI’s human creator, but when considering whether AI output is copyrightable in the first place, a recent federal court of appeals decision points in the direction of “no.”

In Pyrotechnics Mgt., Inc. v. XFX Pyrotechnics LLC (3d Cir.), the court of appeals was asked to decide whether digital messages generated by a computerized communications system were copyrightable. The court reached the conclusion, well in accord with precedent, that the messages lacked adequate creative authorship to be protected.

How the court of appeals arrived there, however, may provide a clue to how courts will treat more complex and creative-looking artificial intelligence outputs in the future.

Background

Pyrotechnics Management, LLC makes and sells hardware and software for controlling fireworks displays. The hardware consists of a control panel and field modules which receive, decode, and carry out instructions from the control panel, such as to shoot off a specified firework.

In 2019, Pyrotechnics registered a copyright in a communications “protocol” between its control panel and field modules. The “protocol,” embodied in software, consists of a format for messages from the control panel to the field modules, messages that use the format, and “a transmission scheme that describes how an individual digital message is converted into an analog signal that can be sent over the wires that connect the control panel and field module.”

The message format consists of twelve digital bytes (a byte consists of 8 bits of information, each bit taking a value either 0 or 1) with each byte used for specific information. If the twelve bytes were fully used, the system could encode more than 4 billion different messages, although only four were actually identified by Pyrotechnics.

The court rejected copyright protection for each of the claimed components of the protocol. The transmission scheme was found to be a “method of operation” excluded from copyright under 17 U.S.C. §102(b). The message format was found to be an idea rather than an expression of an idea and likewise excluded from copyright under 17 U.S.C. §102(b).

With regard to the messages themselves that the system generated, the court likened the system that produces the messages to a part numbering system used by a manufacturer. Citing Southco, Inc. v. Kanebridge Corp., (3d Cir. 2004), the court rejected copyright at least in part because the messages were “an ‘inevitable sequence dictated by the logic’ of the format . . . ‘mechanically produced by the inflexible rules of’ Pyrotechnics’s digital message format.” The court stated:

The digital message format provides rules for constructing messages with particular meanings, and individual messages are generated by applying those rules mechanically. As with Southco’s part numbers, the “utter absence of creativity” is “an essential attribute” of Pyrotechnics’s digital messages. Were the messages to vary from those specified—for example, if a different bit sequence were substituted for a header byte—Pyrotechnics’s devices would not recognize the messages, and the purpose of the protocol (i.e., to enable Pyrotechnics’s control panels and field modules to communicate) would be defeated. Thus, the messages are no more than an “inevitable sequence dictated by the logic” of the format.  “[B]ecause they are mechanically produced by the inflexible rules of” Pyrotechnics’s digital message format, the individual digital messages “are not protected by copyright.”

The court explained that any creativity in developing the numbering system or the format did not include creativity in the individual part numbers or messages. In other words, once the system was in place, the creativity ended and the messages generated by the system were generated mechanically. Thus, the court concluded that “Pyrotechnics's digital messages can ignite fireworks, but like Southco's part numbers, they lack ‘even a spark of creativity’” necessary for copyright protection.

Artificial Intelligence

Artificial intelligence is a much broader topic than the message-producing system in Pyrotechnics. However, the output of artificial intelligence is also generally “mechanically produced” by a system that operates according to rules. While the messages in Pyrotechnics were in themselves simple and more than likely inherently lacking in creativity however produced, the court’s rationale is seemingly also applicable to more complex output. Both Pyrotechnics’ system and more complex systems receive human input of a greater or lesser degree of complexity and from that input the output is “mechanically produced.”

A great deal of effort, including creative effort, goes into building and training an artificial intelligence system, but the result is a machine, however complex. The software driving the system in Pyrotechics surely required creative effort to build, but the output was refused copyright protection.

Previous cases include dicta that the ownership of copyright in creative-seeming artificial intelligence output will depend on who did the “lion’s share” of the creative work that made the output possible – the person(s) initiating the operation of the system or the person(s) creating the system. Pyrotechnics opens up a third possibility: no one.

Conclusion

The court in Pyrotechnics concluded that the creativity in Pyrotechnics’ messages was de minimis, but it is unclear whether the rationale of Pyrotechnics is extendible to cases where the output would clearly be deemed creative if produced solely by a human. That is another question. In the meantime, the speculation in the legal world will continue.