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Artwork Made by Artificial Intelligence Denied Copyright Protection

In the face of human authorship and human inventorship requirements, many wonder how and when, if ever, protection for inventions and creative works generated by artificial intelligence (AI) will fit into the intellectual property realm.

On February 14, 2022, a second request for reconsideration in a copyright application for AI-made artwork, entitled A Recent Entrance to Paradise, was rejected because it lacked the required human authorship to receive protection. The Copyright Review Board, which hears final administrative appeals of refusals of copyright registrations at the U.S. Copyright Office, issued the rejection. Applicant Steven Thaler argued throughout the proceedings that “the human authorship requirement is unconstitutional and unsupported by either statute or case law.” In its decision, however, the Board pointed to a robust body of precedent in response, including Supreme Court opinions, as well as sections of the Compendium of U.S. Copyright Office Practices to support its rejection. The Board summarized that copyright law protects only “the fruits of intellectual labor” that “are founded in the creative powers of the human mind.” Irrespective of the type of creative work, the Board emphasized that the U.S. Copyright Office currently “will refuse to register a claim if it determines that a human being did not create the work.”

The denial of protection for A Recent Entrance to Paradise comes on the heels of a U.S. Patent and Trademark Office (“USPTO”) decision from 2020, known as the “DABUS” case. There, the USPTO concluded that AI cannot be considered an inventor under our patent regime. The catalyst in the DABUS case was a petition regarding a patent application, in which the applied-for invention was generated by an AI creativity machine named “DABUS.” Accordingly, the petitioner named DABUS as the inventor on the application, claiming that “it was the machine, not a person, which recognized the novelty and salience of the invention.” In a manner similar to Thaler, the DABUS petitioner argued that inventorship should not be limited to natural persons, but the USPTO fiercely disagreed.

In finding that the patent laws preclude naming an AI as an inventor, the USPTO relied on Title 35 of the U.S. Code (“35 U.S.C.”) and relevant precedent. The opinion noted that 35 U.S.C. “consistently refers to inventors as natural persons” and pointed to § 100(a), under which an “inventor” is defined as an “individual.” The USPTO also emphasized § 101, which states: “Whoever invents or discovers any new and useful process, machine, manufacture or composition of matter . . . may obtain a patent therefor. . . .” From this language, the USPTO reasoned that the term “whoever” suggests a natural person. The Office also described sections of 35 U.S.C. employing “pronouns specific to natural persons” such as “himself” or “herself,” in addition to citing a requirement that an inventor who executes an oath must be a person. All in all, the USPTO decided that “the patent laws require that an inventor be a natural person.” The DABUS application was finally rejected, and the Office declared that “[n]o further requests for reconsideration [would] be entertained.”

A Recent Entrance To Paradise

[1] See, e.g., U.S. Patent Application No. US16/524,350 (filed July 29, 2019) (Dep. Comm’r Pat.

Apr. 27, 2020) (petition denied) (  (inventor listed on patent was a non-human AI machine named DABUS).


[3] A Recent Entrance to Paradise, Copyright Review Board ( (last accessed February 24, 2022 at 2:56 PM).

[4] Id.

[5] See, e.g., Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) (wherein the Court refers to authors as human).

[6] A Recent Entrance to Paradise, Copyright Review Board ( (last accessed February 24, 2022 at 2:56 PM) (emphasis added).

[7] Id.

[8] U.S. Patent Application No. US16/524,350 (filed July 29, 2019) (Dep. Comm’r Pat.

Apr. 27, 2020) (petition denied) (

[9] Id.

[10] Id.

Hermès Sues NFT Artist over “MetaBirkins” Collection

Legal action is ongoing after Mason Rothchild released a series on Rarible of 100 Birkin bag-inspired non-fungible tokens (NFTs) with simulated fur entitled “MetaBirkin” in December 2021. These NFTs share no affiliation or profits with Hermès, the luxury fashion brand behind the highly coveted “Birkin” bag. Yet, today these NFTs are going for a high of 249 ETH or approximately $780,000, which is nearly double the most expensive Hermès Birkin sold at auction in real life. 

 However, the current rules on NFT counterfeits in the Metaverse are very unclear and ownership over digitally created products is extremely uncertain. Even if Hermès wins its case against Rothchild, the subject NFTs cannot be erased as they are tokens permanently recorded on the Ethereum blockchain. Nevertheless, this lawsuit is breaking new legal ground for what is to come with intellectual property rights in the world of Web3.

The rise of this NFT series’ popularity has prompted the French fashion house to fight back. Hermès believes that these NFTs have “infringed upon the intellectual property and trademark rights of Hermes and are an example of fake Hermes products in the metaverse”. After failing to stop Rothchild with a cease-and-desist letter, Hermès filed a trademark infringement and dilution lawsuit against Rothchild in New York federal court. However, Rothchild says he “won’t be intimated” and maintains that his virtual interpretation of the famed bag is an artistic commentary on the bags and brand and as such should be considered “fair use”. Furthermore, Rothchild has stated: “[i]t’s quite clear from reading Hermes’ complaint that they don’t understand what an NFT is, or what NFTs do.” In this regard, Rothchild is now attempting to secure a dismissal of the suit based on his First Amendment rights.   

Nike Files Lanham Act Claims Against StockX Over NFT’s

Sportswear company Nike recently sued StockX, an online reseller of shoes and other goods, claiming that StockX began selling virtual products using Nike’s trademarks.  The lawsuit filed in the Southern District of New York alleges that these unauthorized non-fungible tokens (“NFT’s”) are likely to cause confusion and to create a false association in the minds of consumers that there is an association between Nike and the Nike-branded NFT’s.  In addition to monetary damages, Nike seeks an injunction blocking such sales of StockX’s NFT’s. 

The five (5) count complaint was filed near the time of Nike releasing its own NFT’s, including the “MNLTH,” which was released on or about February 8.  This NFT features the “Nike swoosh” on both sides, and suggests that an unknown object is encased within the box.  See

Recent Trademark Filings Suggest a Fashionable Metaverse

Over the past few months, there has been a slew of new U.S and foreign equivalent intent-to-use trademark applications filed for virtual goods and spaces, particular within the fashion industry. For example, this past November, third parties filed two trademark applications in connection with the Gucci and Prada logos in a range of metaverse-related arenas, including downloadable virtual goods, virtual worlds, and virtual clothing used in virtual spaces. Likewise, DKNY and Nike filed applications in connection with downloadable virtual goods, namely, computer programs featuring footwear, clothing, and accessories and for use in online virtual worlds. In December, Ralph Lauren similarly filed an application in connection with retail store services featuring virtual clothing and accessories for use in online virtual worlds, and online, non-downloadable virtual clothing and accessories for use in virtual environments. These applications and many more suggest fashion brands are ready to jump into the metaverse.

Although the “zone of natural expansion” may provide some protection for existing trademark filings that lack virtual goods and spaces, brands interested in conducting business in Web3 should consider expanding the scope of their trademark protections as it creates an important presumption of validity and ownership. Some relevant international classes include classes 9, 35, and 41. Additionally, brands should consider retaining virtual rights through licensing and distribution agreements.