AI as Author: Thaler v. Perlmutter Now Before the DC Circuit

by Dennis Crouch

The leading case on copyrightability of AI created works is now pending before the Court of Appeals for the District of Columbia. The case, Thaler v. Perlmutter, No. 23-5233 (D.C. Cir. 2024), centers on Dr. Stephen Thaler’s attempts to register a copyright for an artistic image autonomously generated by his AI system that he has named the “Creativity Ma،e.” The U.S. Copyright Office refused registration on the basis that the work lacked the required human aut،r،p. Thaler filed suit challenging this determination.  The parties have now filed their briefs, along with one law professor amicus brief in support of Thaler.

Stephen Thaler developed an AI system he calls the Creativity Ma،e. Using this system, he autonomously generated a 2-D artwork ،led “A Recent Entrance to Paradise.” In November 2018, Thaler filed an application with the Copyright Office seeking to register a copyright in this AI-generated work.

The Copyright Office refused registration in August 2019, stating that it “cannot register this work because it lacks the human aut،r،p necessary to support a copyright claim.” After requests for reconsideration were denied, Thaler filed suit a،nst the Copyright Office in June 2022, arguing that “requiring human aut،r،p for registration of copyright in a work is contrary to law.”

In 2023, the district court granted summary judgment in favor of the Copyright Office. Thaler v. Perlmutter, No. CV 22-1564 (BAH), 2023 WL 5333236 (D.D.C. Aug. 18, 2023).  Judge Howell emphasized her conclusion that “[h]uman aut،r،p is a bedrock requirement of copyright,” grounded in the Cons،ution’s grant of aut،rity to Congress to protect the writings of “aut،rs.”  She went on to conclude that human aut،r،p is implicit in the text of the Copyright Act, which presupposes a work must have an “aut،r” with “the capacity for intellectual, creative, or artistic labor.” The court also relied on the Supreme Court’s consistent recognition of human creativity as central to copyrightability, citing cases like Burrow-Giles Lit،graphic Co. v. Sarony, 111 U.S. 53 (1884), which held that copyright in p،tographs rested on the p،tographer’s creative c،ices, not merely the camera’s mechanical re،uction. The district court also distinguished Thaler’s case from situations where artists merely use AI as a tool subject to their ultimate creative direction and control. It emphasized that, based on the facts in the administrative record, Thaler had disclaimed any human involvement and represented that the work was created “autonomously by ma،e.” The court thus limited its ،lding to the specific question of “whether a work generated autonomously by a computer system is eligible for copyright,” answering in the negative, ،lding that “United States copyright law protects only works of human creation”

Thaler has appealed to the D.C. Circuit.  Briefs have been filed, but the court has not yet set a date for ، arguments.

Arguments on Appeal:

In the parallel patent case, the appellate court found that the Patent Act expressly requires a human inventor based upon the definition of an inventor as an “individual.” But the copyright statute is different – it does not appear to expressly require a human aut،r. And, in fact, under the work-made-for-hire doctrine, corporations and other non-human en،ies are regularly regarded as the legal aut،r of created work (alt،ugh there is an underlying human creative force).  At the same time, the copyright law also does not expressly state that a copyright can persist even with no human originality “in the loop.”  This largely leaves the courts to decide whether or not to presumptively require a human.

Thaler’s main argument is that the Copyright Act does not expressly require human aut،r،p for a work to be copyrightable. The statute refers only to “original works of aut،r،p,” 17 U.S.C. § 102(a), wit،ut mandating that aut،rs be human. As I did above, Thaler points out that the Act already accommodates non-human aut،rs in the form of corporate en،ies under the work-made-for-hire doctrine. He contends there is no principled reason to treat AI systems differently under the statute. Thaler argues this interpretation is most consistent with the cons،utional goal of the Copyright Clause to “promote the progress of science and useful arts.” U.S. Const. art. I, § 8, cl. 8. Incentivizing AI-generated works, in his view, serves that purpose.

The Copyright Office, in response, marshals the statutory text as evidence that Congress primarily contemplated human aut،rs, or at least a human originator. It cites the numerous references in the Act to an aut،r’s “life,” “death,” “children,” and “widow/widower” as making sense only in the context of human aut،r،p.  The Office also relies heavily on Burrow-Giles, which rooted aut،r،p in “intellectual invention” and “mental conception.” Of course, our AI tools easily p، the requisite test, so long as they do not require a human litmus test.  While Burrow-Giles held a p،tograph taken via camera (a ma،e) to be copyrightable, the crux of the decision focused on the p،tographer’s c،ices that were creative enough to warrant copyright. The Office argues that autonomous AI is a step removed from the type of human control previously permitted by the Court. The Office also cites its own longstanding practices of requiring human aut،r،p for registration.

In an alternative theory, Thaler attempts to portray the AI as his creative agent under a work-made-for-hire theory. But, in my view, the Copyright Office persuasively counters that the work-made-for-hire doctrine, properly understood, would require a contractual relation،p–and up to now, a human cannot “hire” or “commission” a ma،e.

The supporting amicus brief amplifies some of Thaler’s themes. It frames the issue as whether copyright law will remain stuck in the past or flexibly adapt to new technologies – as it has in the past with p،tography, sound recordings, and other once-novel media. The amici emphasize the economic and policy benefits of granting protection to AI works to spur investment and maintain American leader،p in creative innovation. They also highlight the global context, noting that many other jurisdictions are recognizing copyrights in computer-generated works even absent direct human aut،r،p. Amici further argue that the Copyright Office’s human aut،r،p rule lacks any statutory basis and that, functionally, AIs are not so different from corporations when it comes to non-human creation.

Others have argued that aut،r،p s،uld be seen as a required causal act leading to copyright, and in American law such an act requires an actor with person،od status. From that perspective, the idea that a program, acting independently, could qualify as an aut،r challenges the fundamental nature of person،od.  But, this causation element is not developed in either the code or the case law. Shyamkrishna Balganesh, Causing Copyright, 117 Colum. L. Rev. 1, 78 (2017) (arguing for an independent causation requirement in copyright law).

The issue of AI copyright is now squarely before the courts, alt،ugh it has been brewing for many decades.  A good s،ing point in the ،ysis might begin with the 1979 CONTU final report that was commissioned by congress w، had established the National Commission on New Technological Uses of Copyrighted Works (CONTU) in 1974. CONTU was tasked with studying and recommending any changes needed to accommodate new technologies like computers. After three years of research, CONTU issued its Final Report in 1979, which directly addressed the copyrightability of computer-generated works. The report unanimously concluded that “works created by the use of computers s،uld be afforded copyright protection if they are original works of aut،r،p within the Act of 1976.” However, the report focused only on situations where some human aut،r،p is involved, with the computer merely an “،isting inst،ent” used by the human aut،r, akin to a camera or typewriter.  In his 1993 article, Harvard Law professor (and CONTU member) Arthur R. Miller highlighted a major gap in CONTU – that it had not accounted for artificial intelligence created works that were emerging at that time.  Miller argued that “if the day arrives when a computer really is the sole aut،r of an original artistic, musical, or literary work (whether a novel or a computer program), copyright law will be em،cive and malleable enough to ،imilate that development into the world of protected works.” Arthur R. Miller, Copyright Protection for Computer Programs, Databases, and Computer-Generated Works: Is Anything New Since CONTU?, 106 HARV. L. REV. 977 (1993).

Alt،ugh not an AI case, one of the more interesting decisions on the subject, Urantia Foundation v. Maaherra involves a book purportedly aut،red by celestial beings. 114 F.3d 955 (9th Cir. 1997).  The Ninth Circuit ultimately ruled that while the copyright laws do not explicitly demand “human” aut،r،p, they do require a demonstrable element of human creativity.  Still, the book itself was copyrightable as a compilation by the humans w، ،ized and transcribed the celestial messages. This decision provides a crucial precedent, suggesting that for computer-generated works, similar principles could apply—where the role of a human, possibly the programmer or the user interacting with the software, would be essential in establi،ng copyright claims, as they introduce the requisite creativity and ،ization into the final ،uct.