There is a pending decision in the Colorado District Court on a case that will provide insight on the amount of artificial intelligence (AI) that makes a work ineligible. Stay tuned for more updates as we await the ruling.
On March 18, 2025, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision for Thaler v. Perlmutter, which addressed whether a work created autonomously by artificial intelligence (AI) is eligible for copyright protection.
Background
Dr. Stephen Thaler developed an AI system known as the “Creativity Machine,” which produced an artwork titled “A Recent Entrance to Paradise.” He applied for copyright registration in 2018 identifying the author of the images as the “Creativity Machine,” with Thaler listed as the claimant with a transfer statement: “ownership of the machine.” In his application, Thaler stated that the work “was autonomously created by a computer algorithm running on a machine” and he was “seeking to register this computer-generated work as a work-for-hire to the owner of the Creativity Machine.” The U.S. Copyright Office denied the application, citing the necessity of human authorship for copyright eligibility.
Dr. Thaler challenged this decision, arguing that the human authorship requirement was unconstitutional and unsupported by statute or case law. The district court upheld the Copyright Office’s denial, emphasizing that human authorship is a fundamental requirement under the Copyright Act. The court referenced the U.S. Supreme Court’s 1884 decision in Burrow-Giles Lithographic Co. v. Sarony, which upheld the copyrightability of a photograph due to the human creator’s conception and design of the image.
On appeal, the D.C. Circuit affirmed the lower court’s ruling, reiterating that the Copyright Act necessitates human authorship for a work to be eligible for copyright protection. The court noted that while AI-assisted works may be considered for copyright if a human provides creative input or intervention, works generated entirely by non-human entities without human involvement do not qualify. The court did not address the constitutionality of the human authorship requirement, as it was unnecessary for the decision.
What This Means
The outcome of this case is not surprising. It is well settled law that non-human authorship is not recognized by the US Copyright Act. see Naruto v Slater, 888 F3d 418 (CA 9, 2018) (9th Circuit Court of Appeals holding that a monkey cannot be an “author”). However, it should be noted that this opinion only addressed whether a machine with no human intervention could be considered an author of a work. The Court clarified that amount of human intervention for AI created works was not at issue in this case stating, “[t]hose line-drawing disagreements over how much artificial intelligence contributed to a particular human author’s work are neither here nor there in this case. 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.”
This case reaffirms the prevailing legal principle that copyright protection is reserved for works created by humans. As AI continues to evolve, questions about the extent of human involvement necessary for copyright eligibility remain open for future consideration. Indeed, the question will be directly addressed in the upcoming case in Allen v. Perlmutter in the District Court of Colorado. Fraser attorneys will continue to monitor any developments and update our clients.
This alert serves as a general summary and does not constitute legal guidance. Please contact us with any specific questions. When it matters in Michigan, we are the trusted legal advisors for businesses and individuals.
Andrew G. Martin is an experienced registered patent attorney with history working in the automotive, electrical, and agricultural industries. He regularly advises startups and small businesses on the patent and trademark prosecution process, assisting clients from start to finish. You can reach him at 517.377.0834 or at amartin@fraserlawfirm.com.