Denial of Copyright to AI ‘Author’ Affirmed by D.C. Circuit (4)

Copyright protection requires human authorship, a D.C. Circuit panel ruled Tuesday in a landmark opinion, a setback to efforts seeking intellectual property protections for AI-generated creations.

Computer scientist Stephen Thaler argued a copyright should be registered to his AI program for a two-dimensional artwork titled, “A Recent Entrance to Paradise.” But copyright protects human creation, and Thaler waived his alternative argument that he created the work through creating the “Creativity Machine” AI program, according to the opinion from the US Court of Appeals for the DC Circuit.

The opinion by Circuit Judge Patricia A. Millett sided with the US Copyright Office and laid down the first precedential marker regarding how copyright law treats works created by AI. The decision didn’t surprise several law professors—Kristelia Garcia of Georgetown University said she agreed with the court’s assessment and called it the “expected result.”

“This is consistent with the statute as it exists,” Garcia said. “It may be that it’s inconsistent with how we’d like it to be, but we’ll have to amend it going forward.”

The opinion provides no guidance on complicated questions about the copyrightability of works with a mixture of human and AI input, ones with huge implications for creative industries. Millett acknowledged disagreements about where to draw the line on protections for AI-assisted works, but said it’s “neither here nor there in this case” because Thaler listed his machine as the sole author.

Law professor Edward Lee of Santa Clara University pointed to a case in Colorado that he said will test the idea that extensive prompt engineering—an artist used 624 prompts to create his work—can give rise to creativity. Lee said more artists should be testing the bounds of protection for AI-assisted creativity in courts.

The “more important legal battle” is looming, he said.

“What level of human contribution is sufficient to constitute authorship of that work?” Lee asked. “There should be more courts grappling with this issue. It should not become the accepted norm without federal courts stating what the law is on this.”

Thaler’s counsel said it disagreed with the opinion and planned to appeal.

“The Copyright Office has engaged in extra-statutory policy making by completely prohibiting protection of works made using AI without a traditional human author, and the opinion today allows this regime to continue in violation of both the purpose and text of the Copyright Act,” said Ryan Abbott of Brown Neri Smith & Khan LLP.

The Copyright Office said in a statement it “believes the court reached the correct result” by “confirming that human authorship is required for copyright.”

“A Recent Entrance to Paradise,” a visual art piece purportedly created by computer scientist Stephen Thaler’s generative AI “Creativity Machine.”

Source: court document

Property, Lifespans, and Signatures

The Copyright Office refused to register Thaler’s image because it was generated by a machine. Thaler sued the office, but the US District Court for the District of Columbia ruled against him, finding “courts have uniformly declined to recognize copyright in works created absent any human involvement.”

Millett wrote that the text of the Copyright Act of 1976, “taken as a whole, is best read as making humanity a necessary condition for authorship.” That law treats copyright as a heritable property right, suggesting an entity that can’t own property or have heirs can’t be an author. It also couches copyright terms to a human lifespan, she noted.

The law also refers to other elements that can’t be attributed to a machine, Millett said, such as requiring an author’s “signature” to transfer, talking about co-authors’ “intention,” and referring to an author’s “nationality or domicile.” She said the law “makes no sense if an ‘author’ is not a human being.”

Millett also noted the Copyright Office can, and has registered AI-assisted works, and that the foundational purpose of copyright—incentive for creators—doesn’t apply to machines.

The panel rejected Thaler’s argument that nonhuman corporations are already recognized as authors in cases of works made for hire. Millett noted Congress said hiring entities are “considered the author for the purposes of this title,” and avoided saying they “are the author.”

Law professor Shubha Ghosh of Syracuse University agreed, calling work-made-for-hire more of a copyright assignment principle than one of authorship.

Human Involvement

But the question remains what happens when humans and AI are involved.

The Copyright Office has registered AI-assisted works with the AI contribution disclaimed, and a January Copyright Office report reflects a positive evolution toward accepting AI-assisted work as creative, Lee said. But he argued the office continued to maintain, without basis in the law, that prompts alone can’t generate protectable creativity and randomness in what an AI model outputs for the same prompt is disqualifying.

“Why would we want to disqualify use of randomness in the creative process?” Lee said.

Other mediums accept random events not controlled by the author—for example a bird swooping in on prey that a photographer captured without seeing, he said. While some elements may have thin protection, he added, the selection of prompts and targeted editing shouldn’t be disregarded altogether.

“Once you admit editing can effectuate the selection and arrangement, I’m not sure why the element of prompting over and over should be disqualified based on the notion that it incorporates some random element in the process,” Lee said. “We shouldn’t put many restrictions on what the process of creating looks like.”

Ghosh acknowledged unintended features can become a part of a work, noting copyright doesn’t have an intent requirement. But he also said there’s a different degree of human involvement with more traditional tools, and that the AI itself provides much more creativity and originality than the human author by comparison.

It’s challenging to sort out the degree to which a user prompt contributes to an AI output, he said.

“How do you determine it, and who determines it?” he asked.

Circuit Judges Robert L. Wilkins and Judith W. Rogers joined the opinion.

Brown Neri Smith & Khan LLP represents Thaler. The Justice Department represents the Copyright Office.

The case is Stephen Thaler v. Shira Perlmutter, D.C. Cir., No. 23-5233, 3/18/25.