Sign Up for PublicationsD.C. Circuit: AI Cannot Be Author for Copyright Registration
The United States Court of Appeals for the District of Columbia Circuit recently issued a significant ruling involving the intersection of copyright and artificial intelligence: “the Copyright Act of 1976 requires all eligible work to be authored in the first instance by a human being.”
Background
Dr. Stephen Thaler created a generative artificial intelligence named the “Creativity Machine,” which itself made a picture titled “A Recent Entrance to Paradise.” When Thaler submitted an application for a copyright registration for “A Recent Entrance to Paradise” to the U.S. Copyright Office, the Copyright Office denied his application because his application listed only the Creativity Machine as the work’s author. The Copyright Office’s rejection was based on the policy that “requires work to be authored in the first instance by a human being to be eligible for copyright registration.”
Thaler challenged the ruling, conceding that his submission to the Copyright Office was generated by artificial intelligence, but arguing that the requirement for human authorship was “unconstitutional and unsupported by either statute or case law.” The Copyright Office twice affirmed the denial of Thaler’s copyright application, and the United States District Court for the District of Columbia subsequently affirmed the Copyright Office’s denial. Thaler appealed to the D.C. Circuit.
D.C. Circuit Ruling
The D.C. Circuit’s decision was consistent with those of the Copyright Office and the District Court. It affirmed the denial of Thaler’s copyright application on the basis that the Copyright Act requires that all works to be authored by a human being “in the first instance.”
The Court concluded that traditional tools of statutory interpretation indicate that the term “author” in the Copyright Act refers only to humans—not “machines.” The Court focused on multiple provisions of the Copyright Act and determined that they used the term “author” in a way that indicates that authors could only be humans. For example, under 17 U.S.C. § 204(a), copyright transfers require a signature, which machines do not have. Similarly, the Court pointed out that the Copyright Act references an author’s “nationality or domicile” (17 U.S.C. § 104(a)), an author’s “widow or widower” (17 U.S.C. § 203(a)), and an author’s “life” and “death” (17 U.S.C. § 302(a)). The Court reasoned that the Copyright Act, when read as a whole, makes “humanity a necessary condition for authorship.”
Relatedly, the Court rejected Dr. Thaler’s argument that a non-human author can be considered an author under the Copyright Act based upon a modern dictionary definition that suggests the “natural meaning” of “author” is not limited to human beings. The Court emphasized that it considers words in their statutory context and that when courts interpret statutory language they seek to discern how Congress used a word in the law.
The Court also concluded that this understanding is consistent with the interpretation of both the Copyright Office and Congress. The Court noted that “the Copyright Office consistently interpreted the word author to mean a human prior to the Copyright Act’s passage,” including when the Copyright Office “formally adopted the human authorship requirement in 1973.” The Court also inferred that “Congress adopted the agency’s longstanding interpretation of the word ‘author’ when it reenacted that term in the 1976 Copyright Act.” In addition, in 1974, Congress created the National Commission on New Technological Uses of Copyrighted Works, which issued a final report in 1978 that stated that “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 Court also rejected the argument that requiring human authorship impedes the protection of works made with artificial intelligence. The Court clarified that the “human authorship requirement does not prohibit copyrighting work that was made by or with the assistance of artificial intelligence.” In fact, the Court pointed out that the Copyright Office had registered some works made with assistance from artificial intelligence. However, it clarified that Thaler’s dispute did not concern a disagreement about the extent to which artificial intelligence contributed to a human’s work because Thaler identified the “Creativity Machine” as the only author of the work at issue. Finally, the Court noted that concerns about whether this rule would decrease the creation of original works are policy issues more appropriate for Congress than the federal courts.
Unanswered Questions and Takeaways
Although the D.C. Circuit reaffirmed that human authorship is necessary for a work to be eligible for a copyright registration, it did not address “the Copyright Office’s argument that the Constitution itself requires human authorship of all copyrighted material” based upon the Intellectual Property Clause. Nor did it address Thaler’s “argument that he is the work’s author by virtue of making and using the Creativity Machine” because he had waived that argument before the U.S. Copyright Office. Future cases may address these kinds of issues.
The D.C. Circuit refrained from engaging in policymaking or establishing new legal standards regarding artificial intelligence. Conversely, it pointed out that the Copyright Office is studying the intersection of copyright law and artificial intelligence and that it is releasing recommendations based on that analysis.
In May 2025, the D.C. Circuit denied Thaler’s request that his case be reheard en banc.