Opinion

Stephen Thaler v. Shira Perlmutter

130 F.4th 1039

Court: Court of Appeals for the D.C. Circuit
Filed: Mar 18, 2025
Status: Published
Cited by: 3 cases
Authority: More cited than 47.5%

“[T]he cardinal principle of judicial restraint [is that] if it is not necessary to decide more, it is necessary not to decide more[.]” (quoting PDK Lab’ys Inc. v. U.S. Drug Enf’t Agency, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring))

How later courts described this case

“[T]he cardinal principle of judicial restraint [is that] if it is not necessary to decide more, it is necessary not to decide more[.]” (quoting PDK Lab’ys Inc. v. U.S. Drug Enf’t Agency, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring))

Written by the judges who cited it.

The opinion

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 19, 2024 Decided March 18, 2025

No. 23-5233

STEPHEN THALER, AN INDIVIDUAL,

APPELLANT

SHIRA PERLMUTTER, IN HER OFFICIAL CAPACITY AS REGISTER

OF COPYRIGHTS AND DIRECTOR OF THE UNITED STATES

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:22-cv-01564)

Ryan Abbott argued the cause for appellant. With him on

the briefs was Timothy G. Lamoureux.

Ryan N. Phelan was on the brief for amici curiae Legal

Professors Shlomit Yanisky-Ravid, et al. in support of

appellant.

Nicholas S. Crown, Attorney, U.S. Department of Justice,

argued the cause for appellees. With him on the brief were

Brian M. Boynton, Principal Deputy Assistant Attorney

General at the time the brief was filed, Daniel Tenny, Attorney,

and Emily L. Chapuis, Deputy General Counsel, U.S.

Before: MILLETT and WILKINS, Circuit Judges, and

ROGERS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge: This case presents a question

made salient by recent advances in artificial intelligence: Can

a non-human machine be an author under the Copyright Act of

1976? The use of artificial intelligence to produce original

work is rapidly increasing across industries and creative fields.

Who—or what—is the “author” of such work is a question that

implicates important property rights undergirding economic

growth and creative innovation.

In this case, a computer scientist attributes authorship of

an artwork to the operation of software. Dr. Stephen Thaler

created a generative artificial intelligence named the

“Creativity Machine.” The Creativity Machine made a picture

that Dr. Thaler titled “A Recent Entrance to Paradise.” Dr.

Thaler submitted a copyright registration application for “A

Recent Entrance to Paradise” to the United States Copyright

Office. On the application, Dr. Thaler listed the Creativity

Machine as the work’s sole author and himself as just the

work’s owner.

The Copyright Office denied Dr. Thaler’s application

based on its established human-authorship requirement. This

policy requires work to be authored in the first instance by a

human being to be eligible for copyright registration. Dr.

Thaler sought review of the Office’s decision in federal district

court and that court affirmed.

We affirm the denial of Dr. Thaler’s copyright application.

The Creativity Machine cannot be the recognized author of a

copyrighted work because the Copyright Act of 1976 requires

all eligible work to be authored in the first instance by a human

being. Given that holding, we need not address the Copyright

Office’s argument that the Constitution itself requires human

authorship of all copyrighted material. Nor do we reach Dr.

Thaler’s argument that he is the work’s author by virtue of

making and using the Creativity Machine because that

argument was waived before the agency.

The Constitution’s Intellectual Property Clause gives

Congress 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[.]” U.S. CONST. Art. I, § 8, cl. 8. Under that

provision, federal copyright protection extends only as far as

Congress designates by statute. Wheaton v. Peters, 33 U.S.

591, 661 (1834).

so they can be used and enjoyed by the public. Since the

founding, Congress has given authors short term monopolies

over their original work. See Act of May 31, 1790, ch. 15, 1st

Cong., 1 Stat. 124. This protection is not extended as “a special

reward” to the author, but rather “to encourage the production

of works that others might reproduce more cheaply.” Google

LLC v. Oracle Am., Inc., 593 U.S. 1, 16 (2021). By ensuring

that easily reproducible work is protected, individuals are

incentivized to undertake the effort of creating original works

that otherwise would be easily plagiarized.

The Copyright Act of 1976 is the current federal copyright

statute. Three of its provisions are relevant here.

First, the Copyright Act preempts state common law

ownership in a work’s author as soon as a work is created. 17

U.S.C. §§ 102(a); 201(a); 301(a). Although domestic authors

generally must register their copyrights to exercise other rights,

like the right to sue for infringement, id. § 411(a), the right to

own a copyright does not depend on registration or publication.

Second, the Copyright Act incentivizes authors by

protecting their work “for a term consisting of the life of the

author and 70 years after the author’s death.” 17 U.S.C.

§ 302(a). In that way, authors are encouraged to produce work

because they know that they can profit from it for their entire

life and that their heirs and assigns can continue to benefit for

seven decades thereafter.

Third, individuals and organizations can own copyrights

by hiring someone to create work. The Copyright Act’s work-

made-for-hire provision allows “the employer or other person

for whom the work was prepared” to be “considered the

author” and “own[] all of the rights comprised in the

author’s lifetime, a work-made-for-hire copyright lasts “95

years from the year of its first publication, or a term of 120

years from the year of its creation, whichever expires first.” Id.

§ 302(c).

The Copyright Act is administered by the United States

to “[a]dvise Congress” on issues “relating to copyright,” to

“[p]rovide information and assistance” to “Federal

departments and agencies and the Judiciary,” and to “[c]onduct

studies and programs regarding copyright[.]” Id. § 701(b)(1),

(2), (4).

In addition, the Copyright Office has authority to establish

regulations to implement the Copyright Act. 17 U.S.C. § 702.

Pursuant to that authority, the Copyright Office issues

regulations governing the “conditions for the registration of

C.F.R. § 202.3(a)(1). The Copyright Office publishes these

registration regulations in the Compendium of Copyright Office

Practices to inform authors about registration criteria for

different types of work. See Copyright Office, Compendium of

U.S. Copyright Office Practices (3d ed. 2021),

https://perma.cc/9N9N-C3VU (Compendium Third Edition).

Individuals whose registration applications are denied can

seek reconsideration by the Copyright Office’s Registration

Program. If still dissatisfied, they can ask the Copyright

Office’s Review Board to reconsider their case. 37 C.F.R.

§ 202.5(b), (c). A decision by the Review Board “constitutes

final agency action,” id. § 202.5(g), and is reviewable under the

Administrative Procedure Act, 5 U.S.C. § 704; 17 U.S.C.

§ 701(e).

registered work be authored by a human. See Copyright Office,

Compendium of Copyright Office Practices § 2.8.3(I),

(I)(a)(1)(b) (1st ed. 1973), https://perma.cc/J7ML-BZK6

(Compendium First Edition) (“[N]othing can be considered the

‘writing of an author’” unless it owes its “origin to a human

agent[.]”); Copyright Office, Compendium of Copyright Office

Practices § 202.02(b) (2d ed. 1984), https://perma.cc/52MX-

6YPD (Compendium Second Edition) (“The term “authorship”

implies that, for a work to be copyrightable, it must owe its

origin to a human being.”). The current Compendium advises

that the Copyright Office “will refuse to register a claim if it

determines that a human being did not create the work.”

Compendium Third Edition § 306. That refusal extends to

works “produced by a machine or mere mechanical process

that operates randomly or automatically without any creative

input or intervention from a human author.” Id. § 313.2

Dr. Thaler is a computer scientist who creates and works

with artificial intelligence systems, Thaler Opening Br. ii, and

who invented the Creativity Machine, id. 43-44. On May 19,

2019, Dr. Thaler submitted a copyright registration application

to the Copyright Office for an artwork titled “A Recent

Entrance to Paradise.” J.A. 43. On the application, Dr. Thaler

listed the “Author” of that work as the “Creativity Machine.”

J.A. 43. Under “Copyright Claimant,” Dr. Thaler provided his

own name. J.A. 43. In the section labeled “Author Created,”

Dr. Thaler wrote “2-D artwork, Created autonomously by

machine.” J.A. 43.

The Copyright Office denied Dr. Thaler’s application

because “a human being did not create the work.” J.A. 45. The

letter cited the Supreme Court’s decision in Burrow-Giles

Lithographic Co. v. Sarony, 111 U.S. 53 (1884), in support of

its decision. J.A. 45.

In seeking reconsideration by the Registration Program,

Dr. Thaler acknowledged the Copyright Office’s decision “was

made on the basis that the present submission lacks human

authorship[.]” J.A. 49. Dr. Thaler confirmed this “is correct”

and “that the present submission lacks traditional human

authorship—it was autonomously generated by an AI.” J.A.

49. Dr. Thaler then argued that “the Human Authorship

Requirement is unconstitutional and unsupported by either

statute or case law.” J.A. 49. Dr. Thaler claimed judicial

opinions “from the Gilded Age” could not settle the question

of whether computer generated works are copyrightable today.

J.A. 55.

The Registration Program again denied Dr. Thaler’s

application because the work lacked “sufficient creative input

or intervention from a human author.” J.A. 59.

In his request for reconsideration by the Review Board, Dr.

Thaler reaffirmed that “the present submission lacks traditional

human authorship—it was autonomously generated by an AI.”

J.A. 63. He then reiterated his constitutional, statutory, and

policy arguments against the human-authorship requirement.

J.A. 63-69. Dr. Thaler also argued he should own the copyright

under the work-made-for-hire doctrine because “non-human,

artificial persons such as companies can already be authors

under this doctrine.” J.A. 66.

The Review Board affirmed the denial of Dr. Thaler’s

requirement. J.A. 73. The Board relied upon Dr. Thaler’s

“representation that the Work was autonomously created by

artificial intelligence without any creative contribution from a

human actor[.]” J.A. 72. The Board also rejected Dr. Thaler’s

argument that the work was made for hire on the ground that

there was no contract between Dr. Thaler and the Creativity

Machine. J.A. 76-77.

Dr. Thaler sought review in the United States District

Court for the District of Columbia, and both sides moved for

summary judgment. Thaler v. Perlmutter, 687 F. Supp. 3d 140,

142 (D.D.C. 2023). In his motion, Dr. Thaler asserted the same

constitutional, statutory, and policy arguments that he had

advanced before the agency, including the argument that he

owns the copyright under the work-made-for-hire provision.

J.A. 80-115. In addition, he claimed for the first time that the

work is copyrightable because a human—Dr. Thaler—

“provided instructions and directed his AI[.]” J.A. 113.

The district court affirmed the Copyright Office’s denial

of registration. Based on the caselaw and the Copyright Act’s

text, the district court concluded that “[h]uman authorship is a

bedrock requirement of copyright.” Thaler, 687 F. Supp. 3d at

146. The court also held that Dr. Thaler could not rely on the

work-made-for-hire provision because that provision

“presuppose[s] that an interest exists to be claimed.” Id. at 150.

The “image autonomously generated” by the Creativity

Machine was not such an interest because it “was never eligible

for copyright,” so the Machine had no copyright to transfer to

Dr. Thaler even if he were the Creativity Machine’s employer.

Id. Finally, the court found that Dr. Thaler waived his

argument that he should own the copyright because he created

and used the Creativity Machine. The court stressed that, “[o]n

the record designed by plaintiff from the outset of his

application for copyright registration,” the case had presented

“only the question of whether a work generated autonomously

by a computer system is eligible for copyright.” Id. at 149-150.

We review a district court’s grant of summary judgment in

a case concerning agency action de novo and, like the district

court, will set aside the agency action only if it is “arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law[.]’” Jicarilla Apache Nation v. United

States Dep’t of Interior, 613 F.3d 1112, 1118 (D.C. Cir. 2010)

(quoting 5 U.S.C. § 706(2)(A)). We “exercise independent

judgment in determining the meaning of statutory provisions.”

Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 394

(2024).

The district court had jurisdiction under 28 U.S.C. § 1331.

This court has jurisdiction under 28 U.S.C. § 1291.

III

As a matter of statutory law, the Copyright Act requires all

work to be authored in the first instance by a human being. Dr.

Thaler’s copyright registration application listed the Creativity

Machine as the work’s sole author, even though the Creativity

Machine is not a human being. As a result, the Copyright

Office appropriately denied Dr. Thaler’s application.

Authors are at the center of the Copyright Act. A

17 U.S.C. § 201(a). And copyright protection only “subsists

* * * in original works of authorship[.]” Id. § 102(a).

The Copyright Act does not define the word “author.” But

traditional tools of statutory interpretation show that, within the

meaning of the Copyright Act, “author” refers only to human

beings. To start, the text of multiple provisions of the statute

indicates that authors must be humans, not machines. In

addition, the Copyright Office consistently interpreted the

word author to mean a human prior to the Copyright Act’s

passage, and we infer that Congress adopted the agency’s

longstanding interpretation of the word “author” when it re-

enacted that term in the 1976 Copyright Act.

Numerous Copyright Act provisions both identify authors

as human beings and define “machines” as tools used by

humans in the creative process rather than as creators

themselves. Because many of the Copyright Act’s provisions

make sense only if an author is a human being, the best reading

of the Copyright Act is that human authorship is required for

registration.

First, the Copyright Act’s ownership provision is

premised on the author’s legal capacity to hold property. A

This means an “author gains ‘exclusive rights’ in her work

immediately upon the work’s creation.” Fourth Estate Pub.

Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296, 300-301,

(2019) (quoting 17 U.S.C. § 106). Because a copyright is

fundamentally a property right created by Congress, and

Congress specified that authors immediately own their

copyrights, an entity that cannot own property cannot be an

author under the statute.

Second, the Copyright Act limits the duration of a

approximates how long a human might live. A copyright

generally “endures for a term consisting of the life of the author

and 70 years after the author’s death.” 17 U.S.C. § 302(a). The

relating to the death of authors of copyrighted works” so that it

can determine when copyrights expire. Id. § 302(d). If the

author’s death is unknown, the Copyright Act presumes death

after “a period of 95 years from the year of first publication of

a work, or a period of 120 years from the year of its creation[.]”

Id. § 302(e). And even when a corporation owns a copyright

under the work-made-for-hire provision, the copyright endures

for the same amount of time—“95 years from the year of first

publication” or “120 years from the year of its creation[.]” Id.

§ 302(c). Of course, machines do not have “lives” nor is the

length of their operability generally measured in the same

terms as a human life.

Third, the Copyright Act’s inheritance provision states

that, when an author dies, that person’s “termination interest is

owned, and may be exercised” by their “widow or widower,”

or their “surviving children or grandchildren,” 17 U.S.C.

§ 203(a)(2), (A). Machines, needless to say, have no surviving

spouses or heirs.

Fourth, copyright transfers require a signature. To transfer

conveyance” that is “signed by the owner[.]” 17 U.S.C.

§ 204(a). Machines lack signatures, as well as the legal

capacity to provide an authenticating signature.

Fifth, authors of unpublished works are protected

regardless of the author’s “nationality or domicile.” 17 U.S.C.

§ 104(a). Machines do not have domiciles, nor do they have a

national identity.

Sixth, authors have intentions. A joint work is one

“prepared by two or more authors with the intention that their

contributions be merged into inseparable or interdependent

parts of a unitary whole.” 17 U.S.C. § 101. Machines lack

minds and do not intend anything.

Seventh, and by comparison, every time the Copyright Act

discusses machines, the context indicates that machines are

tools, not authors. For example, the Copyright Act defines a

“computer program” as “a set of statements or instructions to

be used directly or indirectly” to “bring about a certain result.”

17 U.S.C. § 101. The word “machine” is given the same

definition as the words “device” and “process,” id., and those

terms are consistently used in the statute as mechanisms that

assist authors, rather than as authors themselves, id. §§ 102(a);

108(c)(2); 109(b)(1)(B)(i); 116(d)(1); 117(a)(1), (c); 401(a);

1001(2), (3). In addition, when computer programs and

machines are referenced in the statute, the statute presumes

they have an “owner,” id. § 117(a), (c), who can perform

“maintenance,” “servic[e],” or “repair” on them, id.

§ 117(d)(1), (2).

All of these statutory provisions collectively identify an

“author” as a human being. Machines do not have property,

traditional human lifespans, family members, domiciles,

nationalities, mentes reae, or signatures. By contrast, reading

the Copyright Act to require human authorship comports with

the statute’s text, structure, and design because humans have

all the attributes the Copyright Act treats authors as possessing.

The human-authorship requirement, in short, eliminates the

need to pound a square peg into a textual round hole by

attributing unprecedented and mismatched meanings to

common words in the Copyright Act. See Food & Drug

Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120,

133 (2000) (“It is a ‘fundamental canon of statutory

construction that the words of a statute must be read in their

context and with a view to their place in the overall statutory

scheme.’”) (quoting Davis v. Michigan Dept. of Treasury, 489

U.S. 803, 809 (1989)).

To be clear, we do not hold that any one of those statutory

provisions states a necessary condition for someone to be the

author of a copyrightable work. An author need not have

children, nor a domicile, nor a conventional signature. Even

the ability to own property has not always been required for

century authored work that was eligible for copyright

protection even though coverture laws forbade them from

owning copyrights. See Melissa Homestead, AMERICAN

WOMEN AUTHORS AND LITERARY PROPERTY, 1822-1869, at

21-62 (2005); Belford, Clarke & Co. v. Scribner, 144 U.S. 488,

504 (1892) (recognizing Mrs. Terhune’s authorship when her

book’s copyright was infringed, even though, as a married

woman, she could not own property).

The point, instead, is that the current Copyright Act’s text,

taken as a whole, is best read as making humanity a necessary

condition for authorship under the Copyright Act. That is the

reading to which “the provisions of the whole law” point. John

Hancock Mut. Life Ins. Co. v. Harris Tr. & Sav. Bank, 510 U.S.

86, 94 (1993) (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S.

41, 51 (1987)).

The Copyright Office’s longstanding rule requiring a

human author reinforces the natural meaning of those statutory

terms.

The Copyright Office first addressed whether machines

could be authors in 1966—ten years before the Copyright Act

of 1976 was passed. That year, the Register of Copyrights

wrote in the Copyright Office’s annual report to Congress that,

as “computer technology develops and becomes more

sophisticated, difficult questions of authorship are emerging.

* * * The crucial question appears to be whether the ‘work’ is

basically one of human authorship, with the computer merely

being an assisting instrument[.]” Copyright Office, Sixty-

Eighth Annual Report of the Register of Copyrights at 5 (1966),

https://perma.cc/QU7P-TY6N.

The Copyright Office formally adopted the human

authorship requirement in 1973. That year, the Copyright

Office updated its regulations to state explicitly that works

must “owe their origin to a human agent[.]” Compendium First

Edition § 2.8.3(I)(a)(1)(b).

In 1974, Congress created the National Commission on

New Technological Uses of Copyrighted Works (“CONTU”)

to study how copyright law should accommodate “the creation

of new works by the application or intervention of such

automatic systems or machine reproduction.” Pub. L. 93-573,

§ 201(b)(2), 88 Stat. 1873 (1974). CONTU assembled

private sector to make recommendations to Congress. Prior to

the Copyright Act’s passage, the Library of Congress published

summaries of CONTU’s meetings, several of which focused on

meetings did members of CONTU suggest that computers were

authors rather than tools used by authors to create original

work. See CONTU, Meeting No. 2 at 10-11 (Nov. 19, 1975),

https://perma.cc/857K-VRSB; CONTU, Meeting No. 3 at 1-11

(Dec. 18-19, 1975), https://perma.cc/EB3T-KNR4; CONTU,

Meeting No. 4 at 1-8 (Feb. 11-13, 1976),

https://perma.cc/NPG6-J8E3; CONTU, Meeting No. 6 (May 6-

7, 1976), https://perma.cc/HCX5-6ZYX; CONTU, Meeting

No. 7 at 46-148 (June 9-10, 1976), https://perma.cc/Q795-

YVQ4.

This understanding of authorship and computer

technology is reflected in CONTU’s final report:

On the basis of its investigations and society’s experience

with the computer, the Commission believes that there is

no reasonable basis for considering that a computer in any

way contributes authorship to a work produced through its

use. The computer, like a camera or a typewriter, is an

inert instrument, capable of functioning only when

activated either directly or indirectly by a human. When

so activated it is capable of doing only what it is directed

to do in the way it is directed to perform.

CONTU, Final Report at 44 (1978), https://perma.cc/7S8T-

TAB5.

Although CONTU’s final report was not published until

1978, its conclusion that machines cannot be authors reflects

the state of play at the time Congress enacted the Copyright Act

in 1976. And when Congress amended the Copyright Act’s

provision governing computer programs shortly following

CONTU’s final report, Congress preserved the Act’s

provisions governing authorship and the language describing

machines as devices used by authors. Pub. L. No. 96-517, 94

Stat. 3015, 3028 (1980) (stating it is not infringement to copy

a computer program if the copy “is created as an essential step

in the utilization of the computer program in conjunction with

a machine[.]”).

In short, at the time the Copyright Act was passed and for

at least a decade before, computers were not considered to be

capable of acting as authors, but instead served as “inert

instrument[s]” controlled “directly or indirectly by a human”

who could be an author. CONTU, Final Report at 44 (1978),

https://perma.cc/7S8T-TAB5. We infer Congress adopts an

agency’s interpretation of a term “when a term’s meaning was

well-settled[.]” Sackett v. Environmental Prot. Agency, 598

U.S. 651, 683 (2023). And that rule applies with double force

here where the commission Congress designated to study the

issue, CONTU, came to the same conclusion. Given all that,

the interpretation of “author” as requiring human authorship

was well-settled at the time the 1976 Copyright Act was

enacted.

Dr. Thaler’s contrary reading of the statutory text fails.

Dr. Thaler argues first that the natural meaning of “author”

is not confined to human beings. Dr. Thaler points to a 2023

dictionary definition defining “author” as “one that originates

or creates something[.]” Thaler Opening Br. 23 (citing Author,

Merriam-Webster Dictionary (2023)), https://perma.cc/S96L-

WYTS.

But statutory construction requires more than just finding

a sympathetic dictionary definition. We “do not read statutes

in little bites,” or words in isolation from their statutory

context. Kircher v. Putnam Funds Tr., 547 U.S. 633, 643

(2006). The judicial task when interpreting statutory language,

instead, is to discern how Congress used a word in the law.

That process includes “a natural presumption that identical

words used in different parts of the same act are intended to

have the same meaning.” Atlantic Cleaners & Dryers, Inc. v.

United States, 286 U.S. 427, 433 (1932). Here, the Copyright

Act makes no sense if an “author” is not a human being. If

“machine” is substituted for “author,” the Copyright Act would

refer to a machine’s “children,” 17 U.S.C. § 203(a)(2), a

machine’s “widow,” id., a machine’s “domicile,” id. § 104(a),

a machine’s mens rea, id. § 101, and a machine’s “nationality,”

id. Problematic questions would arise about a machine’s “life”

and “death[.]” Id. § 302(a). And “machine” would

inconsistently mean both an author and a tool used by authors.

Id. § 117(d)(1); see id. §§ 102(a); 108(c)(2); 116(d)(1); 117(c);

1001(2), (3).

Dr. Thaler points out that the Copyright Act’s work-made-

for-hire provision allows those who hire creators to be

“considered the author” under the Act. 17 U.S.C. § 201(b).

That is why corporations, e.g., Warren v. Fox Fam. Worldwide,

Inc., 328 F.3d 1136, 1140 (9th Cir. 2003), and governments,

e.g., Georgia v. Public.Resource.Org, Inc., 590 U.S. 255, 270

(2020), can be legally recognized as authors.

But the word “considered” in the work-made-for-hire

provision does the critical work here. It allows the copyright

and authorship protections attaching to a work originally

created by a human author to transfer instantaneously, as a

matter of law, to the person who hired the creator. See

Community for Creative Non-Violence v. Reid, 490 U.S. 730,

737 (1989). Congress, in other words, was careful to avoid

using the word “author” by itself to cover non-human entities.

For if Congress had intended otherwise, the work-made-for-

hire provision would say straightforwardly that those who hire

creators “are the author for purposes of this title,” not that they

are “considered the author for purposes of this title.”

Dr. Thaler also argues that the human-authorship

requirement wrongly prevents copyright law from protecting

works made with artificial intelligence. Thaler Opening Br. 38.

But the Supreme Court has long held that copyright law is

intended to benefit the public, not authors. Copyright law

“makes reward to the owner a secondary consideration. * * *

‘[T]he primary object in conferring the monopoly lie[s] in the

general benefits derived by the public from the labors of

authors.’” United States v. Loew’s, Inc., 371 U.S. 38, 46-47

(1962) (quoting Fox Film Co. v. Doyal, 286 U.S. 123, 127

(1932)).

To that public-benefit end, “the law of copyright has

developed in response to significant changes in technology.”

Sony Corp. of America v. Universal City Studios, Inc., 464 U.S.

417, 430 (1984). Photography, sound recordings, video

recordings, and computer programs are all technologies that

were once novel, but which copyright law now protects. See

Burrow-Giles, 111 U.S. at 58; Goldstein v. California, 412 U.S.

546, 565-566 (1973); Sony, 464 U.S. at 442; Google, 593 U.S.

at 21. Importantly, that evolution in copyright protection has

been at Congress’s direction, not through courts giving new

meaning to settled statutory terms.

Contrary to Dr. Thaler’s assumption, adhering to the

human-authorship requirement does not impede the protection

of works made with artificial intelligence. Thaler Opening Br.

38-39.

First, the human authorship requirement does not prohibit

copyrighting work that was made by or with the assistance of

artificial intelligence. The rule requires only that the author of

that work be a human being—the person who created,

operated, or used artificial intelligence—and not the machine

itself. The Copyright Office, in fact, has allowed the

registration of works made by human authors who use artificial

intelligence. See Copyright Registration Guidance: Works

Containing Material Generated by Artificial Intelligence, 88

Fed. Reg. 16,190, 16,192 (March 16, 2023) (Whether a work

made with artificial intelligence is registerable depends “on the

circumstances, particularly how the AI tool operates and how

it was used to create the final work.”).

To be sure, the Copyright Office has rejected some

requirement even when a human being is listed as the author.

See Copyright Office, Re: Zarya of the Dawn (Registration #

VAu001480196) (Feb. 21, 2023), https://perma.cc/AD86-

WGPM (denying copyright registration for a comic book’s

images made with generative artificial intelligence). Some

have disagreed with these decisions. See Motion Picture

Association, Comment Letter on Artificial Intelligence and

(This “very broad definition of ‘generative AI’ has the potential

to sweep in technologies that are not new and that members use

to assist creators in making motion pictures.”); 2 W. PATRY,

37 (“The U.S. Copyright Office guidelines are somewhat

paradoxical: human contributions must be demonstrated within

the creative works generated by AI.”).

Those 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. Dr. Thaler, in other words, argues only for the

copyrightability of a work authored exclusively by artificial

intelligence. Contrast Rearden LLC v. Walt Disney Co., 293

F. Supp. 3d 963 (N.D. Cal. 2018) (holding that companies may

Second, Dr. Thaler has not explained how a ban on

machines being authors would result in less original work

because machines, including the Creativity Machine, do not

respond to economic incentives.

Dr. Thaler worries that the human-authorship requirement

will disincentivize creativity by the creators and operators of

artificial intelligence. Thaler Opening Br. 36. That argument

overlooks that the requirement still incentivizes humans like

Dr. Thaler to create and to pursue exclusive rights to works that

they make with the assistance of artificial intelligence.

Of course, the Creativity Machine does not represent the

limits of human technical ingenuity when it comes to artificial

intelligence. Humans at some point might produce creative

non-humans capable of responding to economic incentives.

Science fiction is replete with examples of creative machines

that far exceed the capacities of current generative artificial

intelligence. For example, Star Trek’s Data might be worse

than ChatGPT at writing poetry, but Data’s intelligence is

comparable to that of a human being. See Star Trek: The Next

Generation: Schism (Paramount television broadcast Oct. 19,

1992) (“Felis catus is your taxonomic nomenclature, an

endothermic quadruped, carnivorous by nature”). There will

be time enough for Congress and the Copyright Office to tackle

those issues when they arise.

Third, Congress’s choice not to amend the law since 1976

to allow artificial-intelligence authorship “might well be taken

to be an acquiescence in the judicial construction given to the

209 U.S. 1, 14 (1908). The human-authorship requirement is

not new and has been the subject of multiple judicial decisions.

The Seventh Circuit has squarely held that authors “of

copyrightable works must be human.” Kelley v. Chicago Park

Dist., 635 F.3d 290, 304 (7th Cir. 2011). And the Ninth Circuit

has strongly implied the same when deciding that an author

must be a “worldly entity,” Urantia Foundation v. Maaherra,

114 F.3d 955, 958 (9th Cir. 1997), and cannot be an animal,

Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018).

Finally, even if the human authorship requirement were at

some point to stymy the creation of original work, that would

be a policy argument for Congress to address. U.S. CONST. Art.

I, § 8, cl. 8. “Congress has the constitutional authority and the

institutional ability to accommodate fully the varied

permutations of competing interests that are inevitably

implicated by such new technology.” Sony, 464 U.S. at 431.

This court’s job, by contrast, “is to apply the statute as it is

written,” not to wade into technologically uncharted copyright

waters and try to decide what “might ‘accord with good

policy.’” Burrage v. United States, 571 U.S. 204, 218 (2014)

(quoting Commissioner v. Lundy, 516 U.S. 235, 252 (1996));

see also Teleprompter Corp. v. Columbia Broad. Sys., Inc., 415

U.S. 394, 414 (1974) (“Detailed regulation of these

relationships, and any ultimate resolution of the many sensitive

and important problems in this field, must be left to

Congress.”). Accommodating new technology “is for

Congress.” Fortnightly Corp. v. United Artists Television, Inc.,

392 U.S. 390, 401 (1968).

In that regard, it bears noting that the Political Branches

have been grappling with how copyright law should adapt to

new technology. The Copyright Office is studying how

Artificial Intelligence and Copyright, 88 Fed. Reg. 59,942,

59,942 (Aug. 30, 2023), and is making recommendations based

on its findings, see Copyright Office, Copyright and Artificial

Intelligence, Part 1: Digital Replicas at 57 (Jul. 31, 2024),

https://perma.cc/8CUH-DN5A (recommending a statutory

right for individuals to sue those who make deepfakes with

their likeness); Copyright Office, Copyright and Artificial

Intelligence, Part 2: Copyrightability at 32-40 (Jan. 29, 2025),

https://perma.cc/W9VR-TLQP (recommending against

changing the law governing the copyrightability of work

generated by artificial intelligence). Also, Congress recently

completed a report that addresses the problem of artificial

intelligence and intellectual property. U.S. House of Rep.,

Bipartisan House Task Force Report on Artificial Intelligence

at 111-136 (Dec. 2024), https://perma.cc/Y69R-DM3D.

Congress and the Copyright Office are the proper audiences for

Dr. Thaler’s policy and practical arguments.

Because the Copyright Act itself requires human

authorship, we need not and do not address the Copyright

Office’s argument that the Constitution’s Intellectual Property

Clause requires human authorship. The Copyright Act

provides “a sufficient ground for deciding this case, and the

cardinal principle of judicial restraint—if it is not necessary to

decide more, it is necessary not to decide more—counsels us to

go no further.” PDK Laboratories Inc. v. United States Drug

Enforcement Agency, 362 F.3d 786, 799 (D.C. Cir. 2004)

(Roberts, J., concurring in part and concurring in the

judgment).

Dr. Thaler raises two alternative arguments in support of

his copyright application. Neither succeeds.

First, Dr. Thaler argues that the Copyright Act’s work-

made-for-hire provision allows him to be “considered the

author” of the work at issue because the Creativity Machine is

his employee. Thaler Opening Br. 52-56; 17 U.S.C. § 201(b).

That argument misunderstands the human authorship

requirement. The Copyright Act only protects “original works

of authorship.” 17 U.S.C. § 102(a). The authorship

requirement applies to all copyrightable work, including work-

made-for-hire. The word “authorship,” like the word “author,”

refers to a human being. As a result, the human-authorship

requirement necessitates that all “original works of authorship”

be created in the first instance by a human being, including

those who make work for hire.

Second, Dr. Thaler argues that he is the work’s author

because he made and used the Creativity Machine. Thaler

Opening Br. 42-51. We cannot reach that argument. The

district court held that Dr. Thaler forwent any such argument

before the Copyright Office. Thaler, 687 F.Supp.3d at 150.

And in his opening brief, Dr. Thaler did not challenge the

district court’s finding of waiver. Dr. Thaler offered only a

single sentence in his opening brief, in which he describes the

district court’s conclusion as “based on a misunderstanding of

the record below.” Thaler Opening Br. 43. That “bare and

conclusory assertion” is insufficient to preserve an argument

for resolution on the merits. Abdullah v. Obama, 753 F.3d 193,

199 (D.C. Cir. 2014).

For the foregoing reasons, the district court’s denial of Dr.

Thaler’s copyright application is affirmed.

So ordered.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.