D.C. Circuit Court Rules That Artificial Intelligence Cannot Solely Author Copyrightable Works

How Did We Get Here?

In the mid-1990s, Dr. Stephen Thaler invented a generative AI tool called the Creativity Machine. Not only has the AI tool been patented (in a now-expired U.S. Patent No. 5,689,666), but Dr. Thaler attempted to expand the AI’s intellectual property rights by using it to create an image, “A Recent Entrance to Paradise.”
When Dr. Thaler applied to federally register the work, he listed the Creativity Machine as the sole author, while he was the sole claimant/owner. He further characterized the role of the Creativity Machine by noting that the work was “[c]reated autonomously by machine” in the application.
The Copyright Office denied the application, citing its long-standing regulation that a human being must create a work for it to be eligible for federal copyright registration, and Dr. Thaler appealed, citing constitutional, statutory, and policy arguments.

Creative Arguments Before the Court

The Copyright Office rooted its human-authorship requirement in the Constitution’s Intellectual Property clause (Art. I, §8, cl. 8.). The court reminded Dr. Thaler that constitutional intellectual property protections exist not to protect authors, but to benefit the public, by encouraging the creation of art; prohibiting sole AI authorship does not impede these protections or benefits.
Dr. Thaler tried two alternative arguments. First, under the work-made-for-hire doctrine, Dr. Thaler argued that he should be the author and owner of the work authored by the AI tool, trying to compare it to instances where entities who are non-human, artificial persons immediately gain authorship of a work under this doctrine by hiring the author. While the U.S. Copyright Office rejected this argument due to a lack of a contract between Dr. Thaler and the Creativity Machine, and the district court rejected it due to a lack of conveyable interest given the ineligibility for copyright registration, the Circuit Court went a step further: under this doctrine, a non-human entity is merely considered to be the author but does not become the author itself, preserving the requirement that a work-made-for-hire, like other copyrightable works, must first be created by a human author.
Second, Dr. Thaler asserted, for the first time at the district court, that the work was copyrightable because he provided instructions and directed the AI. This was rejected given Dr. Thaler’s previous representations about the Creativity Machine’s autonomous generation.