Key Takeaways:
- Confirming the position of the Copyright Office and past precedent considering the possibility of non-human authors, the D.C. Circuit held this week that the Copyright Act does not protect works created entirely by AI. This decision follows a similar conclusion by the Federal Circuit regarding the possibility of patent rights for an invention by an AI.
- The D.C. Circuit's decision does not address the question of how much human involvement in creation is necessary for copyright protection to exist, which will be decided on the facts of future cases.
On Tuesday, March 18, 2025, the U.S. Court of Appeals for the District of Columbia Circuit issued a highly anticipated opinion in the Thaler v. Perlmutter appeal, rejecting the petitioner's attempt to obtain a copyright registration for artwork generated by artificial intelligence.
In a unanimous opinion, the D.C. Circuit held that the Copyright Act of 1976 requires authorship by a human for a work to be registrable, upholding the position of the U.S. Copyright Office.1 Tuesday's opinion is the latest and possibly final say in an effort by Dr. Stephen Thaler to obtain a copyright registration for AI-generated artwork.
Dr. Thaler, a computer scientist, created a generative AI named the "Creativity Machine." The Creativity Machine then generated a picture that Dr. Thaler titled "A Recent Entrance to Paradise" and Dr. Thaler applied to register the copyright in it. Dr. Thaler has also attempted, unsuccessfully, to patent inventions by an AI.
In his copyright application, Dr. Thaler identified the Creativity Machine as the work's only author, and himself as the owner of the copyright.2 The Copyright Office denied Dr. Thaler's application and a subsequent request for reconsideration based on its established position, supported by past case law, that a work must be authored in the first instance by a human being to be eligible for copyright registration. Dr. Thaler appealed to the D.C. District Court, which affirmed the Copyright Office's denial, and then to the D.C. Circuit.
Writing for the unanimous panel, D.C. Circuit Judge Millett observed that while "[t]he Copyright Act does not define the word 'author' ... the text of multiple provisions of the statute indicates that authors must be humans, not machines. In addition, the Copyright Office consistently interpreted the word author to mean a human prior to the Copyright Act's passage, and we infer that Congress adopted the agency's longstanding interpretation of the word 'author' when it reenacted that term in the 1976 Copyright Act."3
Circuit Judge Millett's opinion examines the text of the Copyright Act and identifies multiple provisions that "make sense only if an author is a human being." Those include that copyright terms are based on human lifespans, that the act discusses machines as something distinct from authors, and that authors are discussed as having a nationality and domicile, the ability to own property and provide signatures, surviving family members when they die, and intentions.4 The opinion reasons that "[a]ll of these statutory provisions collectively identify an 'author' as a human being," since machines do not have those attributes, so the best reading of the Copyright Act is that "humanity [is] a necessary condition for authorship."5
The Court rejected the argument that Thaler could be "considered the author" as under a work-made-for-hire arrangement, since Creativity Machine did not have authorship that could be imputed to him. Thaler also argued that he was the true author of the work, because he created and used the Creativity Machine, but the Court did not reach that argument since he had waived it before the Copyright Office.
Tuesday's opinion by the D.C. Circuit in Thaler v. Perlmutter comes after the Federal Circuit held, in Thaler v. Vidal (another appeal brought by Dr. Thaler, to which the Supreme Court later declined to grant certiorari), that inventors or joint inventors named on a patent or patent application must be natural persons.6 These cases as well as the recent guidance issued by the U.S. Patent and Trademark Office and the Copyright Office confirm a consensus view that patent and copyright protections are only available when there has been a human contribution.7
Humanity requirements do not, however, inherently prohibit protection for works or inventions by humans assisted by artificial intelligence.8 Because the D.C. Circuit's and Federal Circuit's Thaler decisions involved copyright and patent applications that identified AI as the sole author or inventor, how much human involvement is necessary for protection is an open question for future cases.9 In the meantime, the Copyright Office has issued a report on legal and policy issues related to AI and copyright containing guidance on its own views.10
Counsel for Thaler has indicated that his client is likely to seek Supreme Court review of the D.C. Circuit's opinion, but it may be unlikely that the Supreme Court will grant certiorari since it declined to review the Federal Circuit's decision inThaler v. Vidal.11
Footnotes
1. Thaler v. Perlmutter, No. 23-5233, slip op. at 2-3 (D.C. Cir. Mar. 18, 2025) [https://media.cadc.uscourts.gov/opinions/docs/2025/03/23-5233.pdf]
2. Id.t 6.
3. Id. at 9-10.
4. Id. at 10-12.
5. Id. at 12-13.
6. Thaler v. Vidal, 43 F.4th 1207, 1213 (Fed. Cir. 2022), cert denied, 143 S. Ct. 1783 (2023).
7. See Inventorship Guidance for AI-Assisted Inventions 89 FR 10044 (U.S. Patent and Trademark Office, Feb. 13, 2024); Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 FR 16190 (U.S. Copyright Office, March 16, 2023)
8. Thaler v. Perlmutter, No. 23-5233, slip op. at 19-20;
9. Thaler v. Perlmutter, No. 23-5233, slip op. at 19-20;Thaler v. Vidal, 43 F.4th 1207, 1209. See also id. at 1213 ("[W]e are not confronted today with the question of whether inventions made by human beings with the assistance of AI are eligible for patent protection.")
10. "Copyright and Artificial Intelligence, Part 2: Copyrightability, A Report of the Register of Copyrights, January 2025 [https://www.copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-2-Copyrightability-Report.pdf]
11. Thaler v. Vidal, 143 S. Ct. 1783 (2023) (Denying petition for writ of certiorari).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
