DC Circuit Holds That AI Cannot Be an Author Under Copyright Law

The U.S. Court of Appeals for the District of Columbia Circuit affirmed the Copyright Office’s position that artificial intelligence cannot be an author under the Copyright Act.¹ The case answers one of the many copyright questions arising from the recent advancements in AI. Simply put, individuals and companies cannot obtain copyright protection for works created solely by AI.

Background

Dr. Stephen Thaler, a computer scientist, designed and developed a generative AI system he named the “Creativity Machine.” Dr. Thaler’s Creativity Machine created an image entitled “A Recent Entrance to Paradise.”

Dr. Thaler filed an application to register the copyright in the image, listing the Creativity Machine as the “author” of the work. The Copyright Office denied Dr. Thaler’s application because the image was not created by a human being. Dr. Thaler requested reconsideration by the Copyright Office but was unsuccessful.

Dr. Thaler appealed the decision to the U.S. District Court for the District of Columbia, which upheld the Copyright Office’s denial. Dr. Thaler then appealed to the DC Circuit. On March 18, 2025, the court issued a unanimous opinion, written by Judge Patricia Millett, affirming the Copyright Office’s denial of the application.

“Human Authorship” is A Statutory Requirement

The DC Circuit rejected Dr. Thaler’s argument that his machine could be an author and held that the Copyright Act requires “human authorship.”

While the statute does not expressly define what an “author” is, the court reasoned that “many of the Copyright Act’s provisions make sense only if an author is a human being” and therefore “the best reading of the Copyright Act is that human authorship is required for registration.”

The court noted that, prior to the 1976 enactment of the Copyright Act, the Copyright Office consistently interpreted the word “author” to mean a human being. Additionally, a commission created by Congress in 1974 to study the issue of authorship determined that a machine cannot be an author. The court reasoned that this history shows the human authorship requirement was “well-settled” when the Copyright Act was enacted.

The Image is Not A Work Made For Hire by Dr. Thaler

The court also rejected Dr. Thaler’s argument that he should be deemed the author of the image under the work-made-for-hire doctrine.

The court concluded that all copyrightable works must “be created in the first instance by a human being, including those who make work for hire.” Because the image was not, there was no copyright interest that could arise for Dr. Thaler under the work-made-for-hire doctrine.

Unanswered Questions

While the court held that AI cannot be an author under copyright law, the decision leaves other important questions unanswered.

First, the court did not reach Dr. Thaler’s argument that “he is the work’s author because he made and used the Creativity Machine.” Dr. Thaler did not raise this argument with the Copyright Office, and the District Court held that he waived the argument. Because Dr. Thaler did not challenge the District Court’s finding, the DC Circuit declined to reach the argument on appeal. This leaves open the important question of whether prompts of AI apps by human users are enough to give rise to authorship. Elsewhere, the Copyright Office has taken the position that prompts alone are not enough.²

Second, the court did not address the issue of AI-assisted creations. This case involved a work that was solely created by AI. The court did not analyze what the scope of authorship is for works created by human beings with AI assistance.

Similarity To The Inventorship Standard in Patent Law

The human authorship requirement is consistent with the “natural person” standard for inventorship in patent law.

In a case that involved Dr. Thaler seeking to obtain patent protection, the Federal Circuit found that an AI software system cannot be an inventor on a patent because the Patent Act requires an inventor to be a natural person.³

Takeaways

The DC Circuit’s decision has important implications for the law on copyright authorship for works created with AI.

• The decision makes it clear that AI cannot be an author under U.S. copyright law.
• The decision clarified that the work-made-for-hire doctrine cannot be used as a back door to obtaining copyright protection for a work generated solely by AI.
• The decision established a similar standard for authorship under the Copyright Act as the human inventorship requirement under the Patent Act.
• The decision did not determine whether persons can claim authorship over works generated by AI because they used AI systems to generate works.
• The decision left open the scope of authorship for AI-assisted creations.

^[1] Thaler v. Perlmutter, No. 1:23-cv-5233-PM (D.C. Cir.).
^[2] U.S. Copyright Office, Copyright and Artificial Intelligence – Part 2: Copyrightability (Jan. 2025) at 18 (“The Office concludes that, given current generally available technology, prompts alone do not provide sufficient human control to make users of an AI system the authors of the output”).
^[3] Thaler v. Vidal, 43 F.4th 1207 (Fed. Cir. 2022).

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