A D.C. Circuit panel unanimously held that the Copyright Act of 1976 requires human authorship to register a work. (AP Photo/ Evan Vucci)
Thaler has been trying to register an artwork that the AI system he programmed and dubbed "the Creativity Machine" made on its own.
"To start, the text of multiple provisions of the statute indicates that authors must be humans, not machines," the appeals court said in an opinion authored by U.S. Circuit Court Judge Patricia A. Millett. "In addition, the Copyright Office consistently interpreted the word author to mean a human prior to the Copyright Act's passage, and we infer that Congress adopted the agency's longstanding interpretation of the word 'author' when it reenacted that term in the 1976 Copyright Act."
Thaler had appealed a D.C. federal judge's ruling from 2023 that upheld the Copyright Office's rejection of a two-dimensional artwork titled "A Recent Entrance to Paradise."
Thaler's counsel said he disagreed "strongly" with the appeals court's decision and that he plans to appeal.
"The Copyright Office has engaged in extrastatutory policymaking 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," Ryan Abbott of Brown Neri Smith & Khan LLP said in a statement to Law360 Monday.
The Copyright Office said the D.C. Circuit got it right.
"The Copyright Office believes the court reached the correct result today, affirming the office's registration decision and confirming that human authorship is required for copyright," the government agency said in an email to Law360 Tuesday.
The Copyright Office has rejected other attempts to register AI-generated art for the same reason, including a two-dimensional artwork called "Théâtre D'opéra Spatial," which won an award at the 2022 Colorado State Fair. The Copyright Office Review Board also rejected an application to register an artwork inspired by Vincent van Gogh's "The Starry Night" in December 2023.
Those cases and others have sparked a debate over whether works created by AI systems but guided by humans merit copyright registration. However, Thaler listed the Creativity Machine as the sole author of the work he sought to register in his application to the Copyright Office and therefore waived his argument on appeal that he could be listed as a work's author "by virtue of making and using the Creativity Machine," the appeals court said. Judge Millett said that doomed Thaler's arguments later for why he should be the author instead of his AI system.
"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," Judge Millett said. "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."
The appeals panel noted that the Copyright Act does not define "author" but that several of its provisions indicate authors must be human, including the premise that an author has the ability to own property and language on how ownership interests can be transferred to spouses or heirs.
"To be clear, we do not hold that any one of those statutory provisions states a necessary condition for someone to be the author of a copyrightable work," Judge Millett wrote. "An author need not have children, nor a domicile, nor a conventional signature. Even the ability to own property has not always been required for copyright authorship. Married women in the nineteenth century authored work that was eligible for copyright protection even though coverture laws forbade them from owning copyrights."
U.S. Circuit Court Judges Patricia A. Millett, Robert L. Wilkins and Judith W. Rogers sat on the panel for the D.C. Circuit.
Thaler is represented by Ryan Benjamin Abbott and Timothy George Lamoureux of Brown Neri Smith & Khan LLP.
The Copyright Office is represented by Nicholas S. Crown and Daniel Tenny of the U.S. Department of Justice's Civil Division.
The case is Thaler v. Perlmutter et al., case number 23-5233, in the U.S. Court of Appeals for the District of Columbia Circuit.
--Editing by Robert Rudinger.
Update: This story has been updated to add more detail from the opinion, a response from the Copyright Office and background on the case.
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