Can AI Be an Author? Thaler v Perlmutter Says No Under US Copyright Law

The applicant, a computer scientist, had created an AI system he called the "Creativity Machine", which produced a picture titled "A Recent Entrance to Paradise". His registration application listed the machine as the author and himself only as the owner. The Copyright Office refused the application under its long-standing human authorship requirement, and its Review Board affirmed that refusal.

What the court decided

The court held that the Copyright Act of 1976 requires all eligible work to be authored in the first instance by a human being. It pointed to provisions that only make sense for humans, such as a term measured by the author's life plus 70 years. Having reached that conclusion on the statute, it did not decide whether the Constitution itself requires human authorship. It also declined to consider the argument that the applicant was himself the author through making and using the system, because that argument had been waived before the agency. The work-made-for-hire route did not help either: the court held that the human authorship requirement applies to that category too.

What it means for AI-assisted works

The opinion in Thaler v Perlmutter stresses that the human authorship requirement does not prohibit copyright in work made by or with the assistance of artificial intelligence. The rule requires only that the author be a human being, such as the person who created, operated or used the AI, rather than the machine. The court noted that the Copyright Office already registers works by human authors who use AI, and that disputes over how much AI contribution is too much were not before it, because this application named the machine as sole author.

The court also left policy questions to Congress and the Copyright Office. It cited the Office's January 2025 report, Copyright and Artificial Intelligence, Part 2: Copyrightability, which recommended against changing the law on the copyrightability of AI-generated material.

Who is affected

For studios, publishers, software developers and brands using generative AI, the practical point is documentation: registrable rights depend on identifiable human creative contribution, so records of human selection, arrangement and modification matter. A work listing an AI system as its sole author will not be registered.

Sources

• US Court of Appeals for the DC Circuit: Thaler v. Perlmutter, No. 23-5233, opinion
• US Copyright Office: Copyright and Artificial Intelligence, Part 2: Copyrightability