D.C. Circuit Upholds Human Authorship Requirement in Thaler v. Perlmutter

A Recent Entrance to Paradise, by Creativity Machine

Last Tuesday, the U.S. Court of Appeals for the D.C. Circuit issued an opinion in Thaler v. Perlmutter affirming the denial of a copyright application filed by artificial intelligence (AI) developer Dr. Stephen Thaler to an image created by one of Thaler’s generative AI systems. Although the appellate court did not categorically reject registrability of all AI-generated works, the D.C. Circuit agreed with the agency that the Copyright Act of 1976 requires all eligible work to be authored in the first instance by a human being.

Precepts of Statutory Construction Confirm That ‘Author’ Must Be Human

The opinion, authored by Circuit Judge Patricia Ann Millett, acknowledged that the human authorship requirement questions raised by Thaler have recently been made salient due to advances in AI. IPWatchdog has covered Thaler’s efforts to register the copyright to “A Recent Entrance to Paradise” generated by his Creativity Machine. Last year, Thaler argued in briefing filed at the D.C. Circuit that technological advances had created ambiguities to the Copyright Act’s authorship requirements that courts should resolve by conveying rights to the image to Thaler as the creator of the Creativity Machine.

“Authors are at the center of the Copyright Act,” Judge Millett wrote, adding that while the Copyright Act doesn’t explicitly define the term “author,” several provisions of the Act support the Copyright Office’s long-standing interpretation that an “author” must be human. The D.C. Circuit’s opinion identified six statutes within the Copyright Act leading to this conclusion, including provisions at 17 U.S.C. § 302(a) by which a copyright’s term “endures for… the life of the author,” as well as 17 U.S.C. § 101’s joint authorship provision, which requires an analysis of intent. By contrast, Copyright Act provisions referencing “computer programs” typically identify them as machines or tools that typically have an owner.

“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… 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.” – Judge Millett

This natural meaning of statutory terms was reinforced by the Copyright Office’s human authorship requirement for registration, which the agency formally adopted in 1973. The National Commission on New Technological Uses of Copyrighted Works (CONTU), published in 1978, also concluded “that there is no reasonable basis for considering that a computer in any way contributes authorship to a work produced through its use.” Given the close timing of these interpretations with passage of the 1976 Act, the D.C. Circuit held that this meaning for “author” was well-settled as of the law’s enactment.

The D.C. Circuit found Dr. Thaler’s arguments on contrary readings of “author” to be unavailing. “[S]ympathetic dictionary definitions,” including a 2023 Merriam-Webster entry, do not overcome the precepts of statutory construction the D.C. Circuit followed in determining the term’s definition. Further, the work-for-hire provision at 17 U.S.C. § 201(b) states that employers are only “considered the author,” contradicting Thaler’s view that the doctrine should attach authorship as it does with other non-human entities like corporations and governments.

Narrow Pathway to Registrability Exists if Human Creativity Directs Work

The appellate court also disagreed with Dr. Thaler that the narrow interpretation of “author” wrongly prevents the protection of AI-generated works. The federal judiciary has interpreted the Copyright Act in light of technological change several times, extending copyright protection to once novel technologies like photographs and sound recordings. Indeed, the Copyright Office has allowed the registration of some works created by humans using AI systems, even though applications for works like Zarya of the Dawn have been rejected. Here, however, the Creativity Machine was listed as the sole author, so line-drawing disagreements over the amount of human contribution was not at issue in this case, the D.C. Circuit concluded.

Machines do not respond to economic incentives of copyright ownership, so banning machines as authors will not result in less original work, the D.C. Circuit reasoned. Congress’ choice to leave the 1976 Act unamended in light of AI advancements could be read as acquiescence to judicial construction, and the appellate court added that it was not the province of the federal courts to decide copyright law issues currently being grappled in Congress and the Executive Branch.

The D.C. Circuit acknowledged that its holding left several arguments unaddressed, including the Copyright Office’s contention that human authorship is required by the IP Clause of the U.S. Constitution. Similarly, the appellate court did not reach Dr. Thaler’s contention that he is the author of “A Recent Entrance to Paradise” because he made the Creativity Machine. This argument was not raised during proceedings at the Office, thus the appellate court upheld the D.C. district court’s finding that it was waived.

Despite the D.C. Circuit’s decision, a narrow pathway towards copyright registration for AI-generated works still exists according to Avery Williams, Principal in McKool Smith’s IP Litigation Practice Area. “There must be human creativity that goes beyond simply directing AI through prompts,” Williams said, adding that AI tools could progress to allow for a degree of human interactions through which copyrightable subject matter arises. “The counterpoint to that is, as AI systems become better at reading prompts and generating outputs, the output becomes less copyrightable because less prompting is required,” Williams noted. Given that agency guidance is not binding on Article III courts, Williams said it was possible that less deference could be paid to the Copyright Office’s interpretations if the issue were to arise in another circuit.