A machine cannot be an author under the Copyright Act, though a human who uses one can be

2025-03-18Copyright

Thaler v. Perlmutter, 130 F.4th 1039 (D.C. Cir. Mar. 18, 2025) (Millett, J., joined by Wilkins, J., and Rogers, S.J.), No. 23-5233, affirming Thaler v. Perlmutter, No. 1:22-cv-01564-BAH (D.D.C. Aug. 18, 2023)

Stephen Thaler applied to register "A Recent Entrance to Paradise," a picture made by his Creativity Machine, listing the machine as sole author and himself as owner. The Copyright Office refused under its human-authorship requirement, and the district court affirmed. The District of Columbia Circuit affirmed in an opinion by Judge Millett, joined by Judge Wilkins and Senior Judge Rogers, holding that the Copyright Act of 1976 "requires all eligible work to be authored in the first instance by a human being." The court read the Act as a whole: copyright vests in the author as property, its term is measured by the author's life, termination rights pass to widows and children, transfers require a signature, unpublished works are protected regardless of the author's nationality or domicile, joint works depend on intention, and wherever the Act mentions machines they are tools. It relied on the Office's human-authorship rule of 1973 and on the 1978 report of the National Commission on New Technological Uses of Copyrighted Works calling the computer an "inert instrument." It rejected the work-made-for-hire theory because that provision transfers authorship that began with a human, and did not reach the constitutional question or Thaler's waived claim to be the author himself. The court said the rule "does not prohibit copyrighting work that was made by or with the assistance of artificial intelligence."

What it changesThe United States now has appellate holdings on both sides of the line: Thaler v. Vidal requires a human inventor, and this decision requires a human author. Neither excludes work made with a model; both exclude work attributed to one. For a company the consequence is a single rule for the records of creative and inventive work: identify the human, say what that person decided, and never list the system. The court left open how much a named human must contribute, calling those line-drawing disputes beside the point on this record, so the Copyright Office's registration practice and its January 2025 report on copyrightability remain the working standard. A business model that depends on exclusive rights in raw generated output has no foundation in either statute; protection has to come from patents on the system and its methods, from documented human selection and editing of outputs, and from contract.