University of Washington School of Law

AI’s Creative Ambitions: A Case Review of Thaler v. Perlmutter (2023)

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By: Stella B. Haynes Kiehn

Is it possible for AI to achieve genuine creativity?  Inventor and self-dubbed “AI Director”, Dr. Stephen Thaler (“Thaler”), has been attempting to prove to the U.S. Copyright Office for the past several years that not only can AI be creative, but also that AI can create works capable of reaching copyright standards.

On November 3, 2018, Thaler filed an application to register a copyright claim for the work, A Recent Entrance to Paradise. While Thaler filed the application, Thaler listed “The Creativity Machine”, as the author of the work, and himself as the copyright claimant. According to Thaler, A Recent Entrance to Paradise was drawn and named by the Creativity Machine, an AI program. The artwork “depicts a three-track railway heading into what appears to be a leafy, partly pixelated tunnel.” In Thaler’s copyright application, he noted that A Recent Entrance to Paradise “was autonomously created by a computer algorithm running on a machine” and he was “seeking to register this computer-generated work as a work-for-hire to the owner of the Creativity Machine.”

The U.S. Copyright Office denied Thaler’s application primarily on the grounds that his work lacked the human authorship necessary to support a copyright claim. On a second request for reconsideration of refusal, “Thaler did not assert that the Work was created with contribution from a human author … [but that] the Office’s human authorship requirement is unconstitutional and unsupported by case law.” The U.S. Copyright Office once again denied the application. Upon receiving this decision, Thaler appealed the ruling to the U.S. District Court for the District of Columbia.

On appeal, Judge Beryl A. Howell reiterated that “human authorship is an essential part of a valid copyright claim.” Notably, Section 101 of the Copyright Act requires that a work have an “author” to be eligible for copyright. Drawing upon decades of Supreme Court case law, the Court concluded that the author must be human, for three primary reasons.

First, the Court stated that the government adopted the Copyright Clause of the U.S. Constitution to incentivize the creation of uniquely original works of authorship. This incentivization is often financial, and non-human actors, unlike human authors, do not require financial incentives to create. “Copyright was therefore not designed to reach” artificial intelligence systems.

Second, the Court pointed to the legislative history of the Copyright Act of 1976 as evidence against Thaler’s copyright claim. The Court looked to the Copyright Act of 1909’s provision that only a “person” could “secure copyright” for a work. Additionally, the Court found that the legislative history of the Copyright Act of 1976 fails to indicate that Congress intended to extend authorship to nonhuman actors, such as AI. To the contrary, the congressional reports stated that Congress sought to incorporate the “original work of authorship” standard “without change.”

Finally, the Court noted that case law has “consistently recognized” the human authorship requirement. The decision pointed to the U.S. Supreme Court’s 1884 opinion in Burrow-Giles Lithographic Company v. Sarony, in upholding the constitutionality of the human only authorship requirement. This case, upholding authorship rights for photographers, found it significant that the human creator, not the camera, “conceived of and designed the image and then used the camera to capture the image.”

Ultimately, this decision is consistent with recent case law, and administrative opinions on this topic. In mid 2024, the Copyright Office plans to issue guidance on AI and copyright issues, in response to a survey of AI industry professionals, copyright applicants, and legal professionals. In relation to the Creativity Machine, one of Thaler’s main supporters in this legal battle is Ryan Abbott, a professor of law and health sciences at the University of Surrey in the UK, and a prominent AI litigant. Abbott is the creator of the Artificial Inventor Project—a group of intellectual property lawyers and an AI scientist working on IP rights for AI-generated outputs. The Artificial Inventor Project is currently working on several other cases for Thaler, including attempting to patent two of the Creativity Machine’s other “authored” works. While the District Court’s decision seems to mark the end of Thaler’s quest to copyright A Recent Entrance to Paradise, it seems as if the fight for AI authorship rights in copyright is only beginning.

SFO v. OAK

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Understanding the Bay Area’s Newest Trademark Battle

By: Anushka Parihar

The San Francisco Bay Area is one of California’s most visited tourist destinations. Millions of visitors a year fly into San Francisco International Airport (SFO) and Oakland International Airport (OAK) to experience the Bay Area’s diverse culture, beautiful landscapes, and innovative spirit. 

Between 2019-2023, travel to Oakland decreased by nearly 2 million people, which the OAK attributes to the Covid-19 pandemic. In response, OAK has launched an advertising campaign intended to increase tourism, including a proposition to rename Oakland International Airport to “San Francisco Bay Oakland International Airport.” However, the City of San Francisco argues that this campaign, along with the OAK’s proposed name change, closely resembles SFO’s trademarked name and themes. These efforts, San Francisco claims, create confusion amongst travelers, leading them to believe that the Oakland and San Francisco airports are the same entity. 

San Francisco City Attorney David Chiu filed suit against Oakland, alleging that OAK’s new name infringes on San Francisco’s registered trademark. The suit seeks an injunction against Oakland and its associated partners, such as airlines, rental cars companies, and travel agencies, to prevent them from using the disputed name. 

The Trademark Battle

Trademarks are words, phrases, symbols, designs, or a combination of these elements that identify goods or services. They are important in protecting a brand’s identity and ensuring consumers recognize brands in the marketplace. In this way, trademarks can be valuable marketing tools. Having a well-known trademark can draw in new customers and keep current customers loyal to the brand. Trademarks also offer clear and enforceable legal rights, allowing brands to block competitors from adopting similar marks that mislead customers. As such, trademark law prevents unfair competition which can be damaging to businesses. 

Trademark infringement occurs when there is an unauthorized use of a trademark that could lead to confusion, deception, or misunderstanding about the source of the good or service associated with the trademark. To successfully show that infringement occurred, the plaintiff must show that the alleged infringer’s infringing goods or services create a likelihood of confusion regarding the source. 

SFO argues that OAK’s renaming to “San Francisco Bay Area Oakland International Airport” would infringe on its trademark, “San Francisco International Airport.” They claim that their name is well-recognized and the new OAK name could confuse consumers as to which airport they are actually flying in or out of, particularly international travelers who are unfamiliar with the area. Consequently, SFO could lose travelers and business to OAK, which is 30 miles away from SFO. This could also inconvenience travelers expecting to be in San Francisco, who must now find their way across the Bay. 

Oakland may respond in a few different ways. They may try to show that there is no real likelihood of confusion. If they are able to show that consumers can distinguish between the two airports, perhaps through a survey, OAK could show that SFO’s claim lacks merit. They could also challenge the strength of SFO’s trademark by arguing that a geographically descriptive term should not have trademark protection. 

Possible Implications

If SFO prevails, they’d be able to reinforce the strength of their trademark and set a precedent about how geographic locations can be used for branding and source identification. OAK would then need to revert to their previous name and restructure their entire advertising campaign, which has already cost an estimated $150,000. 

Conversely, a favorable outcome for OAK could impact how geographical trademarks are used in brand identification, creating a precedent that using geographically descriptive names may not lead to trademark disputes. It would also allow Oakland to continue its marketing strategy and attract a larger customer base. Perhaps OAK could bring business back to the point that it was prior to the pandemic. 

Alternatively, this dispute might settle out of court, if both parties are able to negotiate the terms of use of the name or for financial compensation. This way, San Francisco and Oakland could avoid unnecessary litigation and expenses. 

This local issue might create larger implications for industries where identity and consumer perception are important. As this case progresses, businesses will undoubtedly be following the dispute to ensure their branding and marketing strategies are compliant with t

Gambling on Sports Betting: Maverick and the Future of Gaming in Washington 

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By Sofia Ellington

In 2018, a huge decision by The United States Supreme Court changed the landscape of legalized gambling. In Murphy v. NCAA, the Court functionally legalized sports betting by striking down a federal law that had categorically prohibited the practice. The decision left the door open for states to decide how to handle regulation. Sports betting is a multi-billion dollar industry, and many states have moved to legalize the practice to get a piece of the growing pie. 

Washington State took the opportunity to legalize sports betting by entering into tribal-state compacts with 29 federally recognized Tribes under the Indian Gaming Regulatory Act (IGRA). Under the compact, sports betting is legal, but only if done on tribal land. Regulating sports betting through the IGRA framework is in line with how the State has regulated class III gaming since the late 1980s. However, in January 2022, Maverick Gaming, a non-Tribal affiliated gaming and casino enterprise, filed suit to challenge the compacts. The outcome of the case, which is currently pending in the Ninth Circuit, could jeopardize the future of sports betting in the state and create chaos in the gaming regulatory framework. 

A Short Summary of Tribal Gaming’s Long History

Before diving into the controversy around sport betting, it is essential to understand the tension between the States, Federal Government, and Tribes in regulating the activity. Gaming as we know it today, started with Tribal bingo operations in the 1970’s. Tribes are critical to regulating gaming nationwide and their operations are estimated to bring in around $6.6 billion a year to the Washington State economy alone, funding schools, roads, and creating thousands of jobs. 

As sovereigns, Tribes have inherent authority to authorize gaming on their lands absent interference from the State. However, Congress has authorized several encroachments on that sovereignty, such as Public Law 280. P.L. 280 conferred criminal and civil jurisdiction over certain activities in Indian Country to the state, where before they had no inherent authority. In California v. Cabazon Band of Mission Indians, California attempted to enforce criminal charges on Tribal bingo operations under their P.L. 280 authority, citing concern over the connection between gaming and organized crime. The U.S. Supreme Court rebuked this effort to infringe on Tribal sovereignty, holding that the state was not able to prohibit gaming in Indian Country if that activity was otherwise legal in the state. 

In 1988, the year after Cabazon was decided, Congress once again imported the State’s interest into regulation of Indian country by passing IGRA. Under IGRA, Tribes could run Class I and Class II gaming without state interference. They could only operate higher stakes games under Class III, such as roulette, craps, slot machines, and other casino-style games, by entering into a compact with the state. Sports betting is a Class III game, therefore subject to state-tribal compacts. Each compact must be reviewed and approved by the United States Secretary of the Interior under IGRA. Washington State, along with the majority of states, has chosen to regulate Class III gaming through these compacts. Since IGRA was passed, the law has been a mutually beneficial source of economic development both in and out of Indian Country. 

Maverick Gaming LLC v. United States 

In January 2022, Maverick Gaming filed suit against the United States for approving Washington’s sport betting compacts with Tribes in violation of the Administrative Procedures Act (APA). Maverick alleges sweeping claims, including that the compacts violate IGRA, Equal Protection, and the Tenth Amendment by allowing a “discriminatory tribal gaming monopoly.” They are also pursuing the nuclear option, alleging that IGRA itself is unlawful and must be struck down. 

While the Ninth Circuit is expected to publish a decision that rests on the threshold issue of the Tribe’s immunity from suit instead of on the merits, Maverick would still be unlikely to succeed on the merits of their equal protection claim. Generally, the government is allowed to treat individuals differently as long as the reasons for the distinction are rationally related to a legitimate government interest. This is a fairly easy standard to meet as courts are generally highly deferential to the legislature under rational basis scrutiny. However, higher levels of scrutiny are used when the government is either impermissibly interfering with the exercise of a fundamental right, or disadvantageous to a suspect class such as race, or sex. Maverick is asking the court to review the gaming compacts under strict scrutiny because they argue that the compacts are making a racially based classification, but that is a fundamental misunderstanding of the legal status of tribes. 

As Washington State has pointed out in their reply brief, Tribal status is considered a political, not a racial, classification. This means that if the merits of the equal protection claim were analyzed, it would be under rational basis, not strict scrutiny, and the classification would only need to be reasonable. Washington has an interest in keeping gambling highly regulated and thus less prone to organized crime. That interest is achieved through allowing Tribes to run sports betting operations because they have a long history of safely regulating other Class III games. Therefore, treating Tribal gaming operations differently than non-tribal operations passes rational basis scrutiny and is not a violation of equal protection. 

The Future of Sports Betting 

While non-tribal gaming enterprises and sports teams may hope to see the court invalidate IGRA and the state-tribal compacts in order to get a piece of the pie, a decision that touches the merits of IGRA could have unintended consequences and throw the entire industry into chaos. States still have the option of criminalizing ALL gambling, regardless of the entity engaged in the activity. In fact, if the court invalidates the Washington State compacts, Maverick would not get the relief they desire because sports gambling would remain unlawful for non-Tribal entities, as well as become unlawful for Tribes. 

Although Maverick is unlikely to prevail in their challenge to IGRA and the Washington State-Tribal compacts, the fervor around expanding sports betting beyond tribal operations is growing nationwide. Challenges to IGRA compacts are concerning because they could potentially affect the ability of Tribes to expand their economic development and tread on their authority to run gaming activities on their land if they are struck down. Currently, another sports betting case is pending at the U.S. Supreme Court on a petition of certiorari. The U.S. Supreme Court has not demonstrated, with the surprising exception of Justice Gorsuch, a deep understanding of the role of Tribal sovereignty in our constitutional structure. Any case that reaches them on questions of American Indian Law are in danger of being misconstrued in a way that backslides to limit Tribal sovereignty. Sports betting is no exception. 

Pretty Legal Liars: Polygraph Pre-Employment Screening and Admissibility

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By: Sam Kuper 

When (fingers crossed) I graduate from law school next spring, my six-figure law school investment will come up against the bar—a test that almost every attorney in Washington State has taken since the Multistate Bar Examination (MBE) was introduced in 1972. While the content of the test itself has changed forms across time and jurisdictions—the exam was only administered orally for over a hundred years, and the Washington Supreme Court just announced huge changes for 2026—one requirement for bar admission has stayed consistent: “Every person . . . must be of good moral character and possess the requisite fitness to practice law.” The character and fitness test (“C&F”) requires disclosure of an incredible amount of personal information, from listing the addresses of every place one has ever lived, to that one speeding ticket received in Yakima six years ago, there are few stones left unturned. Many states even require the disclosure of expunged and sealed convictions. According to the American Bar Association, the C&F requirement “In theory . . . protects the public from individuals whose past conduct shows they will not be scrupulous lawyers.” Yet, applicants are rarely refused admission based on character and fitness issues. Once admitted to the bar, lawyers then must abide by the Washington State Rules of Professional Conduct or risk administrative investigation and sanctions. These rules mostly do not apply to law students, save for ABA Rule 8.1—“An applicant for admission to the bar . . . shall not: (a) knowingly make a false statement of material fact.” But if bar examiners are concerned with complete disclosure on bar applications, why do they not require a polygraph test? The answer lies in part on its controversial scientific backing, along with the structure of the legal profession itself. 

Polygraphs as “Junk Science”

Invented in 1921 by a Berkley police officer, modern polygraphs measure changes in physiological factors such as heart rate, blood pressure, respiration, perspiration, and skin conductivity to, in theory, detect when subject is lying versus telling the truth. According to a 2006 Department of Justice report, polygraphs have been used for over seven decades by federal agencies, but were not widespread or centralized until the 1970s. Their most common uses include aiding criminal and administrative investigations, foreign counterintelligence, and counterterrorism investigations. While Wikipedia refers to polygraphs as “junk science” in the first sentence of its entry, the American Polygraph Association—a professional organization that establishes training, standards, ethical practices, research, and instrumentation for polygraph examiners—claims “accuracy rates exceeding 90 percent.” Wikipedia is hardly the polygraph’s only naysayer—a 2003 National Academy of Sciences (NAS) report concluded that, at least in the context of pre-employment screening, “its accuracy in distinguishing actual or potential security violators from innocent test takers is insufficient to justify reliance on its use in employee security screening in federal agencies.” This conclusion prompted the Department of Energy to promulgate a regulation in 2006 that eliminated screening tests without specific cause. A 2019 report by a University of Minnesota psychology professor concluded that, even after two decades, NAS skepticism surrounding the polygraph’s efficacy stands. 

Current Polygraph Legislation

Despite the controversy involving its scientific efficacy, the polygraph remains in considerable use by both federal and state agencies. In 1988, Congress enacted the Employee Polygraph Protection Act (EPPA) which prohibits most private employers from using the polygraph either in pre-employment screening or during the course of employment. However, it still exempted federal agencies like the FBI and NSA, along with other private employers who have “significant impact” on the “national security of the United States.” Many states have similar legislation. In Washington State it is unlawful to require lie detector tests for employees or prospective employees—with exemptions for employment involving law enforcement, controlled substances, and national security. In fact, a polygraph exam is a pre-employment requirement for people seeking employment at a law enforcement agency in Washington State, such as any police department officer or corrections officer. Only five states—Massachusetts, Michigan, Minnesota, New Jersey, and Oregon—have complete prohibitions on polygraph usage by employers, public and private, with some limited exceptions based on consent. To provide some context as to the popularity of the polygraph by states, a 1994 survey of the 699 largest police agencies in the United States determined 62% had an active polygraph screening program. The survey also determined that approximately 25% of the people tested by such programs were disqualified from police employment based on information gleaned from the polygraph. While this survey was conducted thirty years ago, there is little reason to believe its popularity, particularly for pre employment screening, has waned among law enforcement agencies. For example, in 2019, the DEA issued a memorandum stating it will no longer hire Special Agent or Intelligence Research Specialist applicants who fail a polygraph examination. In 2020, the Washington State Legislature proposed to remove the polygraph examination as a requirement for law enforcement—but it was quickly reinstituted in an amendment.

Polygraph Litigation and Admissibility

Considering its dubious scientific underpinnings, it should be no surprise that the polygraph and its results have been the subject of plenty of litigation. Neither the Federal Rules of Evidence (FRE) nor the US Code have a specific provision concerning the admissibility of the polygraph examination results. However, admissibility of scientific evidence is generally governed by FRE 702, along with precedent in Frye v. United States (D.C. Cir. 1923) and Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993). These tests involve the judge deciding admissibility based on either “general acceptance” in the scientific community (Frye) or a non-exhaustive list of factors (Daubert) which includes “general acceptance.” While the Supreme Court has not given a blanket prohibition to polygraphs on this basis, in United States v. Scheffer (1998), the Court ruled that Military Rule of Evidence 707—which prohibits the use of polygraph results in court-martial proceedings—did not violate a defendant’s Sixth Amendment right to present a fair defense. There, the defendant wanted to introduce his polygraph results into evidence that he did not use drugs while enlisted in the military. Without specific guidance, federal and state courts are split on the issue, with some having a per se exclusion, and others allowing it if, for example, both sides agree to its inclusion (this is the Washington State rule). For example, in U.S. v. Posado (1995), the Fifth Circuit held that its per se rule against the admission of polygraph evidence in federal court was no longer viable in light of the new Daubert standard.

Will Bar Associations Require Polygraphs?

While there may be legal grounds for the institution of a polygraph on the C&F portion of the bar, we will likely never see this requirement be implemented. Bar associations generally operate under the delegated authority of the state’s highest court. They regulate bar admission, licensing, and discipline for attorneys, but are not necessarily an employer and thus perhaps not subject to the prohibition. This makes the bar association unique from law enforcement agencies, who are both employers and licensors. However, by precluding prospective attorneys from the bar, it effectively eliminates their ability to work for legal employers (this makes for interesting statutory interpretation). Further, considering the legal profession is more or less self-regulated, there would likely be outcry by attorneys if such a “junk science” was required for bar admission.

Momofuku’s Chili Crunch Oil Catastrophe

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By: Stella B. Haynes Kiehn 

The famous culinary brand Momofuku’s recent attempt to trademark “Chili Crunch” oil has ignited a sizzling debate between federal trademark law and a beloved cultural staple, ultimately leading to a public apology by the brand’s founder.

Momofuku, a food empire owned by celebrity chef David Chang (“Chang”), comprises four restaurants in New York, Las Vegas, and Los Angeles. Chang founded Momofuku in 2004 with the opening of Momofuku Noodle Bar in New York City. The New York Times credits Momofuku with “the rise of contemporary Asian-American cuisine” and Bon Appétit magazine named Momofuku the “most important restaurant in America.”  Momofuku also sells “restaurant-grade products for home cooks” and bottled versions of their famous sauces – the start of the currently contested trademark issue.

Early this year, Momofuku launched a pre-packaged version of their infamous chili sauce, calling it “Chili Crunch.” The sauce is described as “a spicy-crunchy chili oil inspired by Chinese chili crisp and Mexican salsa seca and salsa macha.” Consumers can purchase the Chili Crunch through Momofuku’s website for $13 per 5.5oz jar. On March 29, 2024, shortly after the product was introduced, Chang applied for federal trademark registration of the term “Chili Crunch.” The mark’s application sought to cover “condiments; sauces; food flavorings being non-essential oils; chili oil for use as a seasoning or condiment; chili oils being condiments.”

The names of foods can be trademarked in certain situations. A trademark is a word, phrase, symbol, or design that identifies and distinguishes one party’s goods from those of another party. In other words, a trademark sets one product apart from its competitors. Therefore, in the culinary world, a food trademark is a name, logo, or phrase used to brand and distinguish a food product from similar food products made by other companies. Momofuku likely would have applied sooner for federal trademark protection but was limited because federal registration requires the mark to have been used (or have a bona fide intention to use) in commerce.

Currently, the mark is merely at the application stage, and no decision has been issued by the United States Patent and Trademark Office (USPTO) as to the validity of the mark. Despite this, Chang’s team began to send out cease and desist letters to other businesses using the term “chili crunch” to describe their chili oil sauces. One such recipient, Michelle Tew (“Tew”), founder of the Malaysian food brand Homiah, told The Guardian that the letter states “that Momofuku is the ‘owner of all trademark rights’ for ‘chile crunch’ and ‘chili crunch’ (two different spellings) and that her product, Homiah Sambal Chili Crunch, is a trademark infringement. Tew said her chili crunch is based on her Malaysian family’s recipe, where she grew up.” Buzzfeed published a similar story about another cease and desist letter recipient; “MìLà, a company specializing in frozen soup dumplings and founded by husband-and-wife team Caleb Wang and Jen Liao, posted a similar statement on Instagram after receiving their own cease-and-desist from Momofuku, stating that there’s ‘’” In both letters, Momofuku informed recipients that they had 90 days to cease use of the “Chili Crunch” mark prior to legal action.

The registration of names for food products is nothing new. However, at issue here is both the general community’s and the AAPI (Asian American Pacific Islander) community’s argument that Chang’s excessive policing of “Chili Crunch” essentially turned him into a “trademark bully.” Notably, businesses that were the subject of the cease and desist letters were quick to take to social media and point out that they were all recipients were members of the AAPI restaurant community. Additionally, many recipients also noted that the term “chili crunch” was a “generic cultural term.”

On April 15, likely due to pushback from the culinary AAPI community, Chang announced that he would not enforce the trademark for “Chili Crunch.” While Momofuku still owns the rights to the term “Chile Crunch” (spelled with an “e”), Chang stated that Momofuku will no longer enforce that mark (Momofuku acquired the trademark for the name “chile crunch” from Chile Colonial in 2023). Momofuku elaborates that their decision to no longer enforce the mark could open the door for another company to claim the mark in the future.

Ultimately in a statement to The Eater a Momofuku spokesperson stated; “this situation has created a painful divide between Momofuku, the AAPI community we care deeply about, and other companies sharing grocery store shelves. But the truth is, we all want the same things: to grow, to succeed, and to make America’s pantries and grocery stores a more diverse place.” Ultimately, Momofuku’s case has highlighted that while companies may pursue trademark protection to safeguard their brand identity and market position, companies must also navigate the delicate balance of respecting cultural heritage and community sentiments.