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March 27, 2025
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by Shawn Leppo and Yangmo “Harvey” Ahn

On March 18, 2025, the United States Court of Appeals for the District of Columbia Circuit (the “D.C. Circuit”) ruled in Thaler v. Perlmutter, affirming that works created solely by artificial intelligence (“AI”) cannot be granted copyright protection and upholding that human authorship is an essential requirement for a work to be eligible for registration.  

 Case background  

Stephen Thaler, a computer scientist, created a generative AI system he called the Creativity Machine, which is capable of generating new pieces of visual art. Thaler sought copyright protection for an artwork his system created entitled A Recent Entrance to Paradise. In his copyright application, Thaler listed the Creativity Machine as the author and himself as the owner. The U.S. Copyright Office denied his application, stating that copyright can only be granted to human authors.  

 Thaler initially appealed the decision to the U.S. District Court for the District of Columbia, which upheld the Copyright Office’s decision. That court agreed that human authorship is a fundamental requirement under the Copyright Act, aligning with prior rulings that exclude non-human entities — including AI — from holding copyrights.  

Court of Appeals decision  

Following a further appeal by Thaler to the Court of Appeals, the D.C. Circuit unanimously affirmed the district court’s decision. The D.C. Circuit emphasized that AI lacks legal personhood, as well as human qualities of creativity and intent necessary for copyright protection. The court also rejected the argument that AI systems could hold copyright, even if they autonomously create works.  

While the Copyright Act does not define the word “author,” the court found that the term can refer only to human beings. The court noted that many Copyright Act provisions identify authors as human beings while defining “machines” as tools used by humans in the creative process. A copyright is a property right that vests immediately in the author upon the work’s creation; machines cannot legally own property and thus cannot be an author. Further, provisions relating to the duration of copyright (e.g., the author’s lifespan), inheritance, signature, nationality or domicile, and intention are all premised on authors being human beings.  

And while the Copyright Act does include a work-made-for-hire provision that allows non-human entities such as corporations and governments to be named as authors under some circumstances, the court found this actually reinforced its conclusion. The Copyright Act provides that such entities are “to be considered” as authors, meaning the statutory language inherently contemplates a human, not those entities, as the actual source of authorship.  

Conclusion  

As AI continues to shape the creative industries — producing art, music, literature, and more — this ruling highlights the challenges of applying traditional intellectual property laws to new technologies.  

The Thaler decision establishes just a first stake in copyright law regarding the emerging intersection of AI and intellectual property rights. It definitively, but perhaps unsurprisingly, holds that a work created solely by AI is not entitled to copyright protection. A wide swath of middle ground remains for works that involve some level of human/machine cooperation in the creative process; harder questions remain as to what level of human influence might be necessary to qualify for copyright protection.  

Future outlook  

Earlier this year, the Copyright Office published a report addressing the copyrightability of works created using generative AI. In that report, the Copyright Office addressed how the existing legal framework may apply to various types of human contributions to AI-generated outputs, including prompting, the inclusion of human-authored expressive inputs, and the modification or arrangement of AI-generated outputs. The Copyright Office concludes its report by noting that existing legal doctrines are adequate and appropriate to resolve questions of copyrightability. However, the legal community and policymakers are likely to continue to debate whether additional legislative measures are necessary.  

For businesses and creators to gain and maximize benefits from the use of generative AI, taking proactive steps is essential. Strategies to consider may include determining the extent to which generative AI might be used, addressing the use of generative AI in creative contract agreements, and structuring collaborations that ensure human authorship remains a central component. Depending on the particular circumstances of a situation, these and other approaches can help safeguard intellectual property rights and mitigate legal risks associated with the use of generative AI.  

McNees Intellectual Property attorneys are here to help. Contact us to learn how this ruling may impact your rights and how we can assist in protecting your creative works.  

© 2025 McNees Wallace & Nurick LLC

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