Human authorship is necessary for a copyright. Indeed, the US Copyright Office has denied copyright applications that list artificial intelligence (“AI”) as the sole author of the work. And this has been affirmed by the U.S. District Court for the District of Columbia in Thaler v. Perlmutter, No. 22-1564 (D.D.C. Aug. 18, 2023) (“United States copyright law protects only works of human creation.”). 

In this case, an AI computer system called the “Creativity Machine” generated a work of visual art entitled “A Recent Entrance to Paradise.” The inventor of the Creativity Machine, Dr. Stephen Thaler, then filed a copyright application which identified the Creativity Machine as the visual work’s author, explaining that the Work had been “autonomously created by a computer algorithm running on a machine.” 

The US Copyright Office denied the application because the visual work “lack[ed] the human authorship necessary to support a copyright claim” because “copyright law only extends to works created by human beings.” Furthermore, the Office expressly stated that it will refuse registration if it determines that a human being did not create the work. 

The question before the DC Court was whether the Copyright Office acted arbitrarily or capriciously in declining to register a Work authored exclusively by a computer.

The DC Court affirmed that human authorship is “a bedrock requirement of copyright.” 

Indeed, the Copyright Act of 1976 protects “original works of authorship fixed in any tangible medium of expression.” Thus, to be eligible for copyright, a work must have an author. 

A dictionary definition of “author” is “one that is the source of some form of intellectual or creative work—the creator of an artistic work—a painter, photographer, filmmaker, etc.” The Court found that this definitional requirement of intellectual, creative, or artistic labor meant that the author must be a human.

Furthermore, the Constitution grants Congress the authority to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Encouraging humans to create—“and thereby promote science and the useful arts—was thus central to American copyright from its very inception.” Non-human actors, however, need no such incentivization, so copyright policy was not designed to reach them.

The Court further noted that other courts have uniformly declined to recognize copyright in works that lack “any human involvement.” For example, copyright was denied for a photograph taken by a crested macaque in Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018), often popularly called the “Monkey Selfie” case.

While the Court did note that there will be many challenging questions of copyrightability as a new generation of visual and other artistic works are created by artists with AI in their toolboxes—including how much human input would be necessary—but, “[i]n the absence of any human involvement in the creation of the work,” there is no copyright.  

Thus, the DC Court held that the Copyright Office did not abuse its discretion in refusing to register a copyright for a visual work that lacked a human author. The attorneys at Thomas P. Howard, LLC litigate copyright cases nationwide including in Colorado.