DC Circuit Holds That Human Authorship is Required As “a Matter of Statutory Law” for Copyright Protection

On March 18, 2025, the United States Court of Appeals for the District of Columbia Circuit issued its decision in Thaler v. Perlmutter and affirmed the refusal to register a work of visual art created solely by artificial intelligence (“AI”). In reaching its conclusion, the DC Circuit unequivocally held that human authorship is required for copyright protection, thus affirming the Copyright Office’s longstanding position that human authorship is an essential requirement for copyright protection in the United States.

Background: Three Refusals at the U.S. Copyright Office, Summary Judgment Granted in Favor of the Agency by the District Court

Appellant Dr. Stephen Thaler develops AI systems capable of generating visual artwork, including a system identified as the “Creativity Machine.” Dr. Thaler sought to register a copyright claim in the following two-dimensional artwork generated by the Creativity Machine:

In the application, the author was identified as the “Creativity Machine,” with Dr. Thaler listed as the copyright claimant alongside a transfer statement: “ownership of the machine.”

The Copyright Office denied Dr. Thaler’s application because “a human being did not create the work,” citing the U.S. Supreme Court’s decision in Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) in support of its decision. Subsequently, Dr. Thaler twice requested reconsideration of the decision with the Copyright Office, asserting that the human authorship requirement is unconstitutional and unsupported by either statute or case law. The Copyright Office twice affirmed the denial of registration for lack of human authorship.

Dr. Thaler then sought review in the United States District Court for the District of Columbia. On August 18, 2023, the district court granted summary judgment in favor of the Copyright Office:

• Affirming the Copyright Office’s denial of registration and concluding that, based on caselaw and the statute, human authorship is required for copyright.
• Holding that the work-made-for-hire doctrine did not apply because no copyright existed to transfer to Dr. Thaler, even if he were the Creativity Machine’s employer.
• Holding that Dr. Thaler had waived his argument that he should own the copyright because he created and used the Creativity Machine.

Thaler v. Perlmutter, 687 F. Supp. 3d 140, 142 (D.D.C. 2023). Read more about the district court’s decision here.

DC Circuit: The Copyright Office Did Not Err, as the Copyright Act Requires Human Authorship in the First Instance

In reviewing the district court’s grant of summary judgment de novo, the DC Circuit evaluated only whether to set aside the Copyright Office’s decision for being arbitrary, capricious, or otherwise in violation of the Administrative Procedure Act (APA). Finding that the Copyright Act requires all work to be authored in the first instance by a human being, the DC Circuit held that the Copyright Office had appropriately denied Dr. Thaler’s application.

In reaching its conclusion, the court analyzed multiple provisions of the statute, found that the Copyright Office had consistently interpreted the word “author” to mean a human prior to enactment of the 1976 Copyright Act, and that Congress had adopted the agency’s interpretation when it re-enacted that term in the 1976 Copyright Act.

For example, the DC Circuit held that, while none of the following statutory provisions alone is a necessary condition for authorship, the Copyright Act’s “text, taken as a whole, is best read as making humanity a necessary condition for authorship”:

• Ownership is based on the author’s legal ability to hold property, and machines cannot own property. 17 U.S.C. § 201(a).
• Duration of a copyright is limited to the author’s lifespan or to a period that approximates how long a human might live, and machines do not have lifespans. 17 U.S.C. § 302(a).
• The termination interest of a deceased author’s copyright is descendible, and machines do not have heirs. 17 U.S.C. § 203(a)(2)(A).
• Copyright transfers require a signature “by the owner,” which a machine cannot provide. 17 U.S.C. § 204(a).
• Authors of unpublished works are protected regardless of nationality or domicile, and machines lack a domicile or national identity. 17 U.S.C. § 104(a).
• A joint work is one prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole, and machines lack minds and intention. 17 U.S.C. § 101.
• Every time the Copyright Act discusses machines, the context indicates that machines are tools, not authors.

In addition, the DC Circuit noted that the National Commission on New Technological Uses of Copyrighted Works (CONTU)—created to study how copyright law should apply to works created by “automatic systems or machine reproduction”—concluded that machines cannot be authors, reflecting the “state of play” when Congress preserved provisions governing authorship in the 1976 Copyright Act.

Applying its statutory interpretation of authorship, the DC Circuit rejected Dr. Thaler’s various arguments and determined that, among other things, statutory interpretation requires more than a sympathetic dictionary definition of “author”; contrary to Dr. Thaler’s position, the human-authorship requirement does not prevent copyright law from protecting works made with AI; and whether the human authorship requirement hinders the creation of original works is a policy question for Congress to address, not the court.

The court did not reach the argument that Dr. Thaler is the work’s author by virtue of making and using the Creativity Machine, as that argument was waived before the agency.

Takeaways

Thaler unequivocally holds that human authorship is required for copyright protection, thus affirming the Copyright Office’s longstanding position that human authorship is an essential requirement for copyright protection in the United States. Creators of works generated solely by AI thus cannot claim copyright. The court noted, however, that the human-authorship requirement does not impede the protection of works created by human authors using artificial intelligence. Accordingly, the Copyright Office’s prior guidance and recent policy report on the registration of works incorporating AI-generated material are illustrative. Under the Copyright Office’s guidance, applicants have a duty to disclose the inclusion of AI-generated content in a work submitted for registration, and the agency will evaluate whether sufficient human authorship exists on a case-by-case basis.

Thaler is also interesting given the Supreme Court’s recent Loper Bright decision, which eliminated the Chevron doctrine requiring courts to defer to agencies’ reasonable interpretations of statutory language. (Read about the impacts of the Loper Bright decision on AI and copyright here.) In Thaler, while the DC Circuit noted the Copyright Office’s authority to establish regulations governing registration and that the agency had long required human authorship, the court made clear that it was interpreting the statute independently of any Copyright Office rules. The DC Circuit painstakingly analyzed numerous provisions of the Copyright Act in reaching its own conclusion that as “a matter of statutory law,” human authorship is required for copyright protection.

The case is Thaler v. Perlmutter, No. 23-5233 (D.C. Cir. 2025). Opinion at https://media.cadc.uscourts.gov/opinions/docs/2025/03/23-5233.pdf.