A federal appeals court has ruled that works created solely by artificial intelligence cannot be copyrighted under US law. The decision confirms that human authorship remains a fundamental requirement for copyright protection… at least until Congress decides otherwise.
The U.S. Court of Appeals for the District of Columbia Circuit affirmed a lower court’s decision in the case of Thaler v. Perlmutter, which centered on a copyright application for an artwork titled A Recent Entrance to Paradise that was allegedly created autonomously by an AI system called the “Creativity Machine”.
The ruling, issued on March 18 and obtained by MBW, represents a significant milestone in clarifying how copyright law applies to AI-generated content in an era of rapidly evolving generative AI technologies.
Computer scientist Dr. Stephen Thaler, who created the Creativity Machine, had sought copyright registration for the artwork with the US Copyright Office. On his application, Thaler listed the Creativity Machine as the “author” of the work and himself as merely the “owner,” explicitly stating the artwork was “created autonomously by machine.”
After the Copyright Office denied his application based on its human authorship requirement, Thaler appealed through multiple levels of review before taking the case to federal court.
“We affirm the denial of Dr. Thaler’s copyright application. The Creativity Machine 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.”
Three-judge panel at Court of Appeals, District of Columbia Circuit
In a unanimous decision, the three-judge panel concluded: “We affirm the denial of Dr. Thaler’s copyright application. The Creativity Machine 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.”
However, the court emphasized that this interpretation is based on the current statute, leaving the door open for legislative changes as AI technology continues to evolve.
You can read the full decision here, or, alternatively, scan these three important takeaways from the ruling…
1) The Court found overwhelming evidence that ‘authors’ must be human
The court determined that while the Copyright Act does not explicitly define “author,” the term can only sensibly refer to human beings when viewed in the context of the entire statute.
Circuit Judge Patricia Millett, writing for the court, noted that numerous provisions in the Copyright Act only make sense if an author is human. For example, copyright duration is tied to the author’s lifetime plus 70 years after death, and inheritance provisions refer to an author’s widow/widower and surviving children or grandchildren.
“If ‘machine’ is substituted for ‘author’ [in] the Copyright Act… Problematic questions would arise about a machine’s ‘life’ and ‘death.”
Judge Patricia Millett
“If ‘machine’ is substituted for ‘author,’ the Copyright Act would refer to a machine’s ‘children,’ a machine’s ‘widow,’ a machine’s ‘domicile,’ a machine’s mens rea, and a machine’s ‘nationality,'” Judge Millett wrote. “Problematic questions would arise about a machine’s ‘life’ and ‘death.’ And ‘machine’ would inconsistently mean both an author and a tool used by authors.”
The court further noted that “machines do not have property, traditional human lifespans, family members, domiciles, nationalities, mentes reae, or signatures,” all of which are attributes the Copyright Act associates with authorship.
2) The Copyright Office’s half-century stance on human authorship was validated
The court also found significant that the Copyright Office has consistently interpreted the term “author” to mean a human for decades before the current Copyright Act was passed in 1976.
As early as 1966, the Copyright Office wrote in an annual report to Congress that “the crucial question appears to be whether the ‘work’ is basically one of human authorship, with the computer merely being an assisting instrument.”
The court noted that the Copyright Office formally adopted the human authorship requirement in 1973, and that Congress never altered this understanding when it passed the 1976 Copyright Act or in subsequent amendments.
Additionally, the court cited a report by the National Commission on New Technological Uses of Copyrighted Works (CONTU), which Congress created specifically to study how copyright law should adapt to computer technology. CONTU’s final report concluded: “On the basis of its investigations and society’s experience with the computer, the Commission believes that there is no reasonable basis for considering that a computer in any way contributes authorship to a work produced through its use. The computer, like a camera or a typewriter, is an inert instrument, capable of functioning only when activated either directly or indirectly by a human.”
The court interpreted Congress’s silence on the issue as “acquiescence in the judicial construction given to the copyright laws”.
3) However, AI-assisted works are still copyrightable – and may become more so, depending on congress
Importantly, the court clarified that the human authorship requirement doesn’t prohibit copyright protection for works created with the assistance of AI — it only prevents machines themselves from being considered legal authors.
“The human authorship requirement does not prohibit copyrighting work that was made by or with the assistance of artificial intelligence,” Judge Millett wrote. “The rule requires only that the author of that work be a human being — the person who created, operated, or used artificial intelligence — and not the machine itself.”
This distinction is crucial for creative industries increasingly incorporating AI tools into their workflows.
The court noted that “the Copyright Office has allowed the registration of works made by human authors who use artificial intelligence“.
However, the court did not address where the line should be drawn in cases where both humans and AI substantially contribute to a work, acknowledging that “line-drawing disagreements over how much artificial intelligence contributed to a particular human author’s work are neither here nor there in this case.”
That’s because Dr. Thaler had explicitly described his artwork as “autonomously generated by an AI” with no human creative contribution.
Dr. Thaler had argued that the work-made-for-hire provision of the Copyright Act, which allows employers to be “considered the author” of works created by their employees, should allow him to be recognized as the author since he created and owned the Creativity Machine. The court rejected this argument, noting that this provision still presupposes that a human created the work in the first instance.
Perhaps most significantly, the court’s decision explicitly leaves open the possibility that Congress could one day amend copyright law to extend protection to AI-generated works.
“Even if the human authorship requirement were at some point to stymy the creation of original work, that would be a policy argument for Congress to address,” Judge Millett wrote, adding that “Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology.”
The court emphasized its limited role in interpreting existing law rather than creating new policy: “This court’s job… ‘is to apply the statute as it is written,’ not to wade into technologically uncharted copyright waters and try to decide what ‘might accord with good policy.'”
For now, the decision establishes a clear precedent: in the United States, only works with human authors are eligible for copyright protection, regardless of how sophisticated the AI tools used to create them may be.
Yet as Judge Millett acknowledged, this may not be the final word on the matter, as Congress could someday revisit the issue and explicitly extend copyright protection to AI-generated works.
The ruling comes amid a series of key lawsuits in the United States pitting copyright owners against generative AI platforms.
Notable cases include The New York Times’ lawsuit against OpenAI and Microsoft over alleged copyright infringement in training ChatGPT, Getty Images’ legal action against Stability AI over Stable Diffusion, and a class-action lawsuit led by authors including Sarah Silverman against Meta over its LLaMA AI model.
Meanwhile, Universal Music Group, Concord, and ABKCO are suing Anthropic, alleging massive copyright infringement over the use of copyrighted lyrics by the AI firm’s chatbot, Claude.Music Business Worldwide
