D.C. Circuit Affirms USCO Stance on AI Authorship
Ben Bafumi*
The recent decision in Thaler v. Perlmutter et al., No. 23-5233 (D.C. Cir. 2025) offers continued guidance on whether “authorship” can be attributed to AI systems (i.e., non-humans) under Copyright Law. The D.C. Circuit affirmed the denial of Stephen Thaler’s copyright application, which included artwork generated fully by his AI model, the “Creativity Machine,” on the basis that it is not a “human being” as required by the Copyright Act of 1976. The Court made clear that “authors must be humans, not machines,” based, at least in part, on the consistent approach from the Copyright Office prior to the passage of the Copyright Act. While Thaler found these to be archaic principles unrepresentative of modern technology and culture, the Court was unconvinced. The Copyright Office was gladdened by this decision, as it not only affirms age-old precedent, but similarly affirms other recent rejections by the Office based on AI-generated works. However, the authorship-denied work in Thaler is distinguishable from these cases, as Thaler’s work sought for AI to be the sole author. Interestingly, the D.C. Circuit ruled that Thaler waived his right to assert partial authorship on appeal. While unfavorable to those who wish to garner full authorship to AI systems, this narrow holding still leaves open avenues to attribute partial-authorship to AI-assisted works. This consideration, namely, whether to list AI as a partial or full author of a work, may make or break a copyright application.
*Ben Bafumi is a law clerk at Baker Botts
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