Content generated entirely using artificial intelligence and with no human control over the expression generated cannot be protected by copyright. In short, an author must be a human being. This unsurprising conclusion was confirmed again by a U.S. Circuit Court of Appeals in Thaler v Permultter No. 23-5233 (D.C. Cir. March 18, 2025). In reaching its conclusion, the court acknowledged that content created using AI systems may be protected by copyright, but did not address where the line should be drawn as to what level of human authorship must exist for a work to be protected or the scope of protection to be given to a work created with the aid of an AI system. These questions did not arise because Thaler’s copyright registration application listed the Creativity Machine as the work’s sole author, even though the Creativity Machine is not a human being.
The opinion of the court did not rest on any philosophical or policy premise favoring or disfavoring the human authorship requirement. Rather, it was based on statutory construction of the Copyright Act, and confirmed by the U.S. Copyright Office practice of denying registration for non-human generated works and prior cases that supported the conclusion. As the court concluded, “As a matter of statutory law, the Copyright Act requires all work to be authored in the first instance by a human being.” Further, “the current Copyright Act’s text, taken as a whole, is best read as making humanity a necessary condition for authorship under the Copyright Act.”
As in Canada, the U.S. Copyright Act does not define the word “author”. However, as pointed out by the court, “Authors are at the center of the Copyright Act. A copyright “vests initially in the author or authors of the work.”.. And copyright protection only “subsists …in original works of authorship”.
The court gave numerous examples of why the Act inexorably had to be read as excluding non-human author machines as being eligible to be authors including:
- The Copyright Act’s ownership provision is premised on the author’s legal capacity to hold property.
- The Copyright Act limits the duration of a copyright to the author’s lifespan or to a period that approximates how long a human might live.
- The Copyright Act’s inheritance provisions identifying survivors could not apply to machine authors.
- Machines could not meet the Act’s signature requirements.
- Machines do not have domiciles, a criterion for copyright eligibility.
- Machines do not have intentions, a criteria for joint works.
- Every time the Copyright Act discusses machines, the context indicates that machines are tools, not authors.
Unsurprisingly, the court concluded that “the Copyright Act makes no sense if an “author” is not a human being”.
The court, in the passages below, confirmed that copyrights can arise when AI systems are used by human authors, but it eschewed any inquiry to the more important question as to what human uses of AI tools will give rise to a copyrightable interest and the scope of that protection.
First, the human authorship requirement does not prohibit copyrighting work that was made by or with the assistance of artificial intelligence. 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. The Copyright Office, in fact, has allowed the registration of works made by human authors who use artificial intelligence. See Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16,190, 16,192 (March 16, 2023) (Whether a work made with artificial intelligence is registerable depends “on the circumstances, particularly how the AI tool operates and how it was used to create the final work.”)…
Those 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 is because Dr. Thaler listed the Creativity Machine as the sole author of the work before us, and it is undeniably a machine, not a human being. Dr. Thaler, in other words, argues only for the copyrightability of a work authored exclusively by artificial intelligence. Contrast Rearden LLC v. Walt Disney Co., 293 F. Supp. 3d 963 (N.D. Cal. 2018) (holding that companies may copyright work made with motion capture software).
Comments:
There is no surprise that the U.S. Circuit Court of Appeals affirmed the decision of the District Court (summarized here) that rejected Dr Thaler’s copyright registration application. Works created with the assistance of a machine including an AI system are undoubtedly protectable, such as works that select or arrange AI generated content, where human authored works are the starting point for a work (and remain a substantial feature of the work), or where AI generated content is sufficiently modified or enhanced by people. See, Barry Sookman, Understanding the Copyrightability of AI: Insights from the U.S. Copyright Office, Ed Lee, Has the Copyright Office become more receptive to AI-generated works? Yes, if they embody selection, coordination, arrangement of human creators.
