Appellate Court Confirms Copyright Statute Limits Authorship to Humans, Foreclosing Copyright Registration for Content Solely Generated by AI

As many expected, the United States Court of Appeals for the District of Columbia Circuit affirmed decisions by a lower court and the United States Copyright Office (USCO) that human authorship is required to obtain copyright protection in the United States.¹ 

The court limited its analysis to whether the Copyright Act of 1978 (“Act”) required human authorship, avoiding the larger question of whether the Constitution mandates human authorship.²  Had the court weighed in on the constitutional issue, the result may have limited legislative options to expand copyright protection to AI-generated content.  By limiting the analysis to the Act, the decision could be overruled by legislation that expands the definition of authorship.  Should that occur, a constitutional challenge to the new statute may await.

The court provided a straightforward analysis rooted in the Act’s use of “author” and “machine.” 

• The Act relies on the term “author” to vest certain rights and determine the duration of a copyright.  It noted that the Act vests a property right in the author immediately upon creation, but, as a machine, an AI model cannot own property.³  
• The duration of a copyright is often based upon the life of the author.  Machines do not have “lives,” and operability is not akin to measuring a human life.⁴ 
• The Act transfers ownership to the author’s heirs upon death—another concept inapplicable to a machine.⁵  Conveyance of a copyright requires a signature by an author, a task the court concluded a machine could not perform.⁶ 
• The Act discusses the author’s nationality or domicile—concepts inapplicable to machines.⁷ 
• The Act considers the intent of an author, and the court noted that “[m]achines lack minds and do not intend anything.”⁸ 
• The court bolstered its analysis by considering the discussion of the machines in the Act.  The court noted that the Act makes clear that the machine acts as a tool to assist an author in generating content and not as an author.⁹ 

These points led the court to the inescapable conclusion “that 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.”¹⁰,¹¹

While the statutory analysis would suffice to support the court’s decision, the court supplemented the analysis by considering USCO policy that existed at the time of passage of the Act.  The court explained that the USCO formally adopted a human authorship requirement in 1973.  The court further noted that a congressional commission charged with reviewing the impact of new technology on copyrighted works stated in 1978 that “there is no reasonable basis for considering that a computer in any way contributes authorship to a work produced through its use.”¹²  Considering the advancements in AI, one could quibble with this point as dated.  But the court was attempting to understand congressional intent in 1978 when Congress created the Act.

The D.C. Circuit’s decision maintains the status quo in the United States—human authorship remains essential to copyrightability.  But the court chose not to foreclose a different result in the future.  The limitation of the decision to the Copyright Act of 1978 provides flexibility for legislative action that would broaden the reach of copyrights.  This may be appropriate, considering the advancement of computer technology since 1978; it may no longer be accurate to state that “there is no reasonable basis for considering that a computer in any way contributes authorship to a work produced through its use.”

¹ Thaler v. Perlmutter, 23-5233, 2025 WL 839178 *1 (D.C. Mar. 18, 2025).

² The court did not analyze whether Mr. Thaler was the author of the AI-generated content though his creation and use of the AI model, because he failed to raise the argument before the USCO.  Thaler v. Perlmutter, 23-5233, 2025 WL 839178 *1 (D.C. Mar. 18, 2025).

³ Thaler v. Perlmutter, 23-5233, 2025 WL 839178 *4 (D.C. Mar. 18, 2025).

⁴ Id.

⁵ Id. at *5.

⁶ Id.

⁷ Id.

⁸ Id.

⁹ Id.

¹⁰ Id. at *6 (emphasis added).

¹¹ The court dismissed Mr. Thaler’s evidence supporting a broader meaning of the term “author,” because “statutory construction requires more than just finding a sympathetic dictionary definition.”  Thaler v. Perlmutter, 23-5233, 2025 WL 839178 *7 (D.C. Mar. 18, 2025).  It also rejected Mr. Thaler’s work made-for-hire analysis.  The fact that the Act allows a work created by a human author to be immediately transferred to another entity does not override that the act of creation originates from a human.  Thaler v. Perlmutter, 23-5233, 2025 WL 839178 *7 (D.C. Mar. 18, 2025). 

¹² Thaler v. Perlmutter, 23-5233, 2025 WL 839178 *6 (D.C. Mar. 18, 2025).