The U.S. Court of Appeals for the D.C. Circuit waded into the question of whether software or A.I. can qualify as an author for copyright purposes. In Thaler v. Perlmutter, a unanimous panel concluded that such non-human entities cannot be authors.
Judge Millett wrote for the panel, joined by Judge Wilkins and Senior Judge Rogers. Here is her summary of the case and decision:
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.
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