The U.S. District Court for the District of Columbia recently affirmed a decision by the U.S. Copyright Office (“USCO”) in which the USCO denied an application to register a work authored entirely by an artificial intelligence program. The case, Thaler v. Perlmutter, challenging U.S. copyright law’s human authorship requirement, is the first of its kind in the United States, but will definitely not be the last, as questions regarding the originality and protectability of generative AI (“GenAI”) created works continue to arise. The court in Thaler focused on the fact that the work at issue had no human authorship, setting a clear rule for one end of the spectrum. As the court recognized, the more difficult questions that will need to be addressed include how much human input is required to qualify the user as the creator of a work such that it is eligible for copyright protection.
The USCO Decision
The USCO thrice denied an application filed with the USCO by computer scientist Steven Thaler in November 2018 to register a two-dimensional artwork titled “A Recent Entrance to Paradise” (the “Work”), the author of which was identified as the “Creativity Machine”, an artificial intelligence program.
Thaler, who was also listed as the claimant on the application, indicated that the Work was “autonomously created by a computer algorithm running on a machine” and he was seeking to register the Work as a work-for-hire as the owner of the “Creativity Machine”. The USCO initially refused registration of the Work for lacking “the human authorship necessary to support a copyright claim”, which Thaler argued was unconstitutional and unsupported by the jurisprudence. Upon request for reconsideration, the USCO upheld its initial refusal, stating it would not “abandon its longstanding interpretation of the Copyright Act, Supreme Court, and lower court judicial precedent that a work meets the legal and formal requirements of copyright protection only if it is created by a human author.” In his second request for reconsideration, Thaler reiterated his arguments and suggested that public policy would support registering GenAI works. In its refusal of Thaler’s second request for reconsideration, the USCO reflected on decades of case law in both the Supreme Court and lower courts, as well as the Compendiums of U.S. Copyright Law and a report published by the National Commission on New Technological Uses of Copyrighted Works (“CONTU”), a group created to consider questions about the impact of new technologies on the copyright system in the 1970s, which ultimately concluded at that time that “the presence of at least minimal human creative effort at the time the work is produced” was a requisite element for copyrightability even when such works are created with the use of computers. The USCO, maintaining this perspective and upholding the human authorship requirement with respect to GenAI works, refused to register the copyright claim in the Work.
The District Court Decision
On August 18, 2023, invoking its jurisdiction under the Administrative Procedures Act to review a final agency action, Judge Beryl A. Howell of the U.S. District Court for the District of Columbia considered the USCO’s refusal of Thaler’s application upon motion for summary judgment. The court notes that “the single legal question presented here is whether a work generated autonomously by a computer falls under the protection of copyright law upon its creation”. Thaler v. Perlmutter, 1:22-cv-01564, 6 (D.D.C. Aug. 18, 2023). The court then states plainly: “The [Copyright] Register did not err in denying the copyright registration application presented by plaintiff. United States copyright law protects only works of human creation”. Id. at 7.
Judge Howell recognizes, as does Thaler, that copyright law has adapted to cover works created with or involving technology (e.g., photographs). Nevertheless, after citing examples from the Copyright Act of 1909 (the precursor to the current Copyright Act of 1976) and going as far back as the Federalist Papers, Judge Howell emphasizes that human involvement in the creation of such works has always been an essential element at the core of copyrightability, the sine qua non of copyright protection. To make clear the limits of the “human creation” requirement, the court leans heavily on the analogy to case law regarding the copyrightability of photographs, relying on Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 58 (1884). In that case, the Supreme Court held that photographs amounted to copyrightable creations of “authors”, i.e., the individual holding the camera, because a photograph is given its final form by a photographer’s mental conception of the photograph and decisions contributing to the composition of such image.
Further, Judge Howell’s decision highlights that the “fixing” of the work in a tangible medium of expression, as required under U.S. copyright law, must be done “by or under the authority of the author” (17 U.S.C. § 101) who is the source of the creative work, and therefore, in order to be eligible for copyright protection, such author must be human. Other non-human “authors” whose works have been found by the courts to be ineligible for copyright protection include monkeys (Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018)) and “celestial beings” (Urantia Found. v. Kristen Maaherra, 114 F.3d 955 (9th Cir. 1997)).
Ultimately, the court acknowledges that GenAI is quickly becoming a new tool to “be used in the generation of new visual and other artistic works” (Thaler, at 13), but focuses on the fact that the application presented by Thaler made no assertion that Thaler played any role in the creation of the Work, which was generated autonomously by the “Creativity Machine”. Based on these facts then, Judge Howell upheld the decision of the USCO to refuse registration of the copyright based on the lack of human authorship involved in the creation of the Work. This decision, however, does not entirely foreclose the copyrightability of works created with the assistance or involvement of GenAI tools. The court makes clear that new technologies do have a place within the existing legal framework for copyright protection, so long as some human hand is involved in the creation of such work. Just as “it is not the creations of divine beings that the copyright laws were intended to protect” (Urrantia, 114 F.3d at 958-59), neither is it the sole creations of artificial intelligence. Future cases will undoubtedly question the amount of human involvement necessary for copyrightability versus machine involvement in this Gen AI era.
 Refusal of First Request for Reconsideration from USCO to Ryan Abbott [Thaler’s attorney] at 1-2 (March 30, 2020).
 CONTU Report, Pub. L. 93-573, § 201(b)(2), 88 Stat. 1873 (1974). The USCO also rejected Thaler’s work-for-hire argument, explaining that a work made for hire must be either (A) prepared by “an employee” or (B) by one or more “parties” who “expressly agree in a written instrument” that the work is for-hire, and noting that the “Creativity Machine” could not enter into a binding legal contract and thus could not meet these requirements. The District Court likewise rejected this argument, noting that this argument concerns to whom a valid copyright should have been registered (and not who the author should be) and therefore “put[s] the cart before the horse”. Thaler v. Perlmutter, 1:22-cv-01564, at 7 (D.D.C. Aug. 18, 2023)