Is copyright limited to human authorship? Or, may artificial intelligence create a work of art or write a novel that qualifies for copyright protection? Recently a federal appeals court concluded that only humans are entitled to copyright protection for their works. The court’s conclusion was based on two principal arguments: (1) the natural construction of the Copyright Act, including assignability and the formulation of copyright terms, when taken as a whole contemplates human authorship, and (2) copyright protection extends by Congress for the benefit of society to induce works of authorship and not for the benefit of the author. However, there is more in the decision than meets the eye.
For background, Stephen Thaler developed an AI machine, called the Creativity Machine, capable of autonomously creating visual art. Thaler sought a copyright for a work titled “A Recent Entrance to Paradise,” disclosing himself as the “owner” of record and the machine as the work’s author. The Copyright Office refused registration on the basis that the author was not human. The trial court concurred with the Copyright Office that AI is not entitled to a copyright.
On appeal, the appeals court declined to take on the question of how and to what extent human contributions are required for an AI-generated work to transform the work into human authorship, stating, “[t]hose line-drawing disagreements over how much artificial intelligence contributed to a particular human author’s work are neither here nor there in this case.” The appeals court, however, stated that the human authorship requirement under the Copyright Act precludes AI-aided works. The unanswered question in the appeals court’s decision is whether AI is being used as a “tool” to aid in creating an expression of human conception (which might, theoretically, be entitled to copyright protection) or whether AI is the source of the conception itself such that copyright does not apply.
It is here that the appeals court then finds itself briefly gazing into the future, given AI’s likely progression toward a human level of intelligence. Referencing Data, a character from the science fiction series Star Trek: The Next Generation, the court speculates that once machines are capable of economic inducement rather than being involuntary agents, the underlying public policy rationale for copyright protection could be implicated. In this regard, the appeals court demurs to Congress. But the court’s musing invites further inquiry. The species of machines having human-like intelligence, generally referred to as “artificial general intelligence” or “AGI,” will trade in a different motivational currency than humans do. Economic incentives are innately human. The essentials of life are acquired through human work performed in exchange for goods or currency. Yet, this utilitarian notion of human motivation is arguably incomplete. The motivating force behind a work or art or literature can be the expression of the unique personhood of its creator: “cogito, ergo sum.” Along these lines, the Berne Convention for the Protection of Literary and Artistic Works ( “Berne”) recognizes as much. Under Berne, an author’s moral rights are protected from modifications that would be prejudicial to the author’s reputation or honor. However, like Thaler’s case,the central question turns to whether honor and reputation are exclusively human traits. Again, autonomous machine-created works bump into the humanity test. As things stand, achieving AGI alone would appear insufficient. Something more is required akin to self-awareness with the adornments of self-gratification motivated by personal reputation and/or economic gain. For now, absent a change in prevailing law, intelligent machines must aspire to a soul to reach the pearly gates of paradise—that is, in this case, the heavenly reward of copyright protection.
The case is Thaler v. Perlmutter, No. 23-5233, 2025 WL 839178 (D.C. Cir. Mar. 18, 2025).
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