On March 18, the U.S. Court of Appeals for the Federal Circuit issued a decision in the Thaler v. Perlmutter case, which confirmed the refusal of copyright registration for a work created entirely by an artificial intelligence system. The Court’s ruling was unequivocal and succinct: an AI system “cannot be the recognized author of a copyrighted work because the Copyright Act of 1976 requires all eligible work to be authored in the first instance by a human being.”

The opinion can be found here: https://media.cadc.uscourts.gov/opinions/docs/2025/03/23-5233.pdf

KEY TAKEAWAYS:

• • The Copyright Act requires all works to be authored in the first instance by a human being.

• • Although the Copyright Act does not define the term “author,” traditional tools of statutory interpretation make it clear that “author” refers only to human beings.

• • If a copyright application lists an artificial intelligence system as the sole author, refusal by the Copyright Office is appropriate.

The Copyright Application

Steven Thaler created an artificial intelligence system called the “Creativity Machine” and used the system to create a work of visual art called “A Recent Entrance to Paradise” (pictured below).

Thaler applied to register that work with the Copyright Office, and in his application listed the Creativity Machine as the author of the work. He further specified the author-created work as “2-D artwork, created autonomously by machine.”

Copyright Office Appeals

The Copyright Office refused to register “A Recent Entrance to Paradise” because “a human being did not create the work.” Thaler twice sought reconsideration of that refusal from the Copyright Office, both times acknowledging that “the present submission lacks traditional human authorship,” but arguing the human authorship requirement is unconstitutional and unsupported by statute or case law.

Both requests for reconsideration were denied, again based on lack of human authorship. In his second request, Thaler also argued he was the author of the work based on a work-for-hire interpretation. The Copyright Office rejected that approach on the grounds that no contract existed between Thaler and the Creativity Machine.

Appeal to Federal District Court

Thaler appealed the Copyright Office’s refusal to the U.S. District Court for the District of Columbia, and offered the same arguments he had submitted to the Copyright Office. The district court affirmed the registration refusal, based once again on the lack of human authorship. The court rejected the work-for-hire argument, because a machine-generated work was never entitled to copyright protection, so there was no copyrightable interest that could be transferred to Thaler. (The Court held that Thaler’s newly raised human authorship argument, based on providing instructions and directions to the Creativity Machine, was waived because it had not been made in the original copyright application.)

Appeal to the Federal Circuit

Thaler appealed the district court’s decision to the Federal Circuit Court of Appeals. The Court began its analysis with the Constitution’s Intellectual Property Clause, which gives Congress authority to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries[.]” U.S. CONST. Art. I, § 8, cl. 8. Under that provision, federal copyright protection extends only as far as Congress designates by statute. Wheaton v. Peters, 33 U.S. 591, 661 (1834). The purpose of this limited monopoly is not primarily to reward the author, but rather “to encourage the production of works that others might reproduce more cheaply.” Google LLC v. Oracle Am., Inc., 593 U.S. 1, 16 (2021).

The court identified three basic principles of the Copyright Act of 1976 as relevant: (1) preemption of state common law rights (by virtue of vested federal copyright ownership in the author immediately upon creation of a work) (17 U.S.C. §§ 102(a); 201(a); 301(a)); (2) the ability of a person or entity to hire a third party to create a work (17 U.S.C. § 201(b)); and (3) a set duration for protection, tied to human lifespan (17 U.S.C. § 302(a), Id. § 302(c)).

Pursuant to its authority to establish regulations that govern copyright registration, the Copyright Office publishes the Compendium of Copyright Office Practices (CCOP). (Current edition at https://perma.cc/9N9N-C3VU). These regulations have long required human authorship for copyright entitlement. See CCOP 1st ed. 1973, § 2.8.3(I), (I)(a)(1)(b), https://perma.cc/J7ML-BZK6 (“[N]othing can be considered the ‘writing of an author’” unless it owes its “origin to a human agent[.]”); CCOP 2d ed. 1984, § 202.02(b), https://perma.cc/52MX6YPD (“The term ‘authorship’ implies that, for a work to be copyrightable, it must owe its origin to a human being.”) The current edition of the CCOP states, at § 306, that “the Copyright Office ‘will refuse to register a claim if it determines that a human being did not create the work.’”

The Court made two primary arguments in favor of the human authorship requirement:

1. 1. Statutory Construction. The Court pointed to numerous provisions of the Copyright Act to conclude that “the best reading of the Copyright Act is that human authorship is required for registration.” Those provisions include ownership (17 U.S.C. § 201(a)), duration (17 U.S.C. § 302), inheritance (17 U.S.C. § 203(a)(2), (A)), signature requirement for transfer of rights (17 U.S.C. § 204(a)), nationality or domicile (17 U.S.C. § 104(a)), joint works and the intentionality language related to such works (17 U.S.C. § 101), and repeated reference to machines as tools rather than authors (17 U.S.C. § 101, 102(a); 108(c)(2); 109(b)(1)(B)(i); 116(d)(1); 117(a)(1), (c); 401(a); 1001(2), (3), § 117(d)(1), (2)). The Court summarized these provisions by stating that “[m]achines do not have property, traditional human lifespans, family members, domiciles, nationalities, mentes reae, or signatures.”
   2. Natural Meaning of Statutory Terms. The Court noted the Copyright Office has, since at least 1966, focused on human authorship as a requirement for copyright protection. That position was formally adopted by the Copyright Office in 1973. Further, the National Commission on New Technological Uses of Copyrighted Works (CONTU), created by Congress in 1974, studied the implications of works created by automatic systems or machine reproduction. CONTU’s final report stated “there is no reasonable basis for considering that a computer in any way contributes authorship to a work produced through its use.” Because all these events occurred—or in the case of the CONTU report, reflected the “state of play”—before the Copyright Act of 1976 was passed, the Court found “the interpretation of ‘author’ as requiring human authorship was well-settled at the time the 1976 Copyright Act was enacted.”

The Court rejected Thaler’s argument that “author” is not confined to human beings. First, the Court reiterated its statutory construction argument to counter Thaler’s reference to dictionary definitions of “author” that were not expressly limited to human beings: “the Copyright Act makes no sense if an ‘author’ is not a human being.” Second, when Thaler argued that corporations could be authors of copyrighted works under the work-for-hire doctrine, the Court noted the specific statutory language only allows corporations to be “considered the author,” and only in situations where a human has actually created the work. The fact that the statute employs the term “considered” makes the work-for-hire doctrine a legal fiction, and thus does not support the conclusion that non-humans can be authors in the original sense.

Finally, the Court considered and rejected Thaler’s argument that the human authorship requirement would prevent copyright protection for works made with artificial intelligence. First, the Court noted the primary purpose of copyright law is to benefit the public; any benefit to the copyright owner is of secondary consideration. Second, the Court distinguished between works created by artificial intelligence or other machines (not protectable), and those created by humans with the help of AI or other machines (potentially protectable). The Court also pointed to photography, sound and video recordings, and computer programs that were once novel technologies but are now protected under copyright law. Finally, the Court rejected the argument that the human authorship requirement would stifle the generation of original work, since machines do not respond to economic incentives.

The Court did not decide two other questions: (1) whether the U.S. Constitution requires human authorship, and (2) whether Thaler is the work’s author. The Court passed over the constitutional question on “judicial restraint” grounds, given the finding that the Copyright Act answered the human authorship question. It also declined to consider Thaler’s claim that he was an author because he had made and used the Creativity Machine to create “A Recent Entry Into Paradise,” given the lower court’s finding that issue had been waived.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice with regard to your situation, you should contact an attorney.