Thaler

To what should have been no one's surprise, including Thaler's,  yesterday the DC Circuit affirmed the Copyright Office's rejection of his application. 2025 WL  839178 (DC Circuit March 18, 2025). I have always regarded this as a PR stunt, given the way the application was phrased, the long standing requirement of human authorship, and the very high bar of APA review. There will next, I assume, be a fruitless petition for cert.  All toward what end? No new law was made because blessedly the Circuit decided the issue on statutory and not constitutional grounds, and did not go further than is had to. It did not address what are the real issues regarding copyrightability and AI: what level of human authorship is enough? On this the court of appeals wrote:

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 copyright applications based on the human-authorship 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 Copyright at 5 (Oct. 30, 2023), https://perma.cc/9W9X-3EZE (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, Copyright § 3:60.52 (2024); Legal Professors Amicus Br. 36-37 (“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 copyright work made with motion capture software).

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.

The court of appeals also rejected a work for hire argument based on a claim that his machine was his "employee." I doubt he paid social security taxes for the machine or provided health care. 

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