Is (Copyright) Paradise Lost for A Recent Entrance to Paradise and Other AI-Generated Works?

Last week, the D.C. Circuit Court of Appeals issued its opinion in Thaler v. Perlmutter. The opinion notably solidifies the U.S. Copyright Office’s position that works generated autonomously (and thus solely) by artificial intelligence are not copyrightable under the U.S. Copyright Act.

Background

Dr. Thaler, creator and owner of the “Creativity Machine,” filed an application with the U.S. Copyright Office to register A Recent Entrance to Paradise, pictured below. The copyright application named “Creativity Machine” as the author of the artwork and included statements that the artwork “was autonomously created by a computer algorithm running on a machine” and that Thaler was “seeking to register this computer-generated work as a work-for-hire to the owner of the Creativity Machine.”

The Copyright Office refused to register the work, and the Copyright Office Review Board affirmed the refusal because it was created solely by a non-human entity. According to the Board “…human authorship is a prerequisite to copyright protection in the United States and that the Work therefore cannot be registered.” Copyright Office Review Board Refusal Letter Dated February 14, 2022 at 3.

Dr. Thaler appealed the Copyright Office’s decision in federal district court, and that court affirmed the refusal, concluding that “[h]uman authorship is a bedrock requirement of copyright.” Thaler v. Perlmutter, 687 F. Supp. 3d 140, 146 (D.D.C. 2023). The court also rejected Dr. Thaler’s argument that the work was copyrightable as a work-made-for-hire because the Copyright Act’s definitions of a “work made for hire” “require that the individual who prepares the work is a human being.” Id. at 150.

The Human Authorship Requirement

The D.C. Circuit Court affirmed the refusal to register A Recent Entry into Paradise. According to the Circuit Court, “the Copyright Act requires all [copyrightable] work to be authored in the first instance by a human being.” Although the Copyright Act does not define the word “author,” “traditional tools of statutory interpretation show that, within the meaning of the Copyright Act, ‘author’ refers only to human beings.” Thaler v. Perlmutter, No. 23-5233, 2025 WL 839178, at *4 (D.C. Cir. 2025).

Takeaways

Although the D.C. Circuit Court’s decision confirms that, at least for now, works made solely by generative artificial intelligence (GAI) or other autonomous machines are not currently eligible for copyright protection, it recognizes that certain works made with GAI may be copyrightable. Indeed, the U.S. Copyright Office’s Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence contemplates the possibility of a work made with a GAI tool being registrable, depending on, for example, “how the AI tool was used to create the final work.” 88 Fed. Reg. 16,190, 16,192 (March 16, 2023). However, in a report issued earlier this year, the U.S. Copyright Office concludes that given the current state of available GAI tools, AI-generated works based on human-created prompts alone—even if repeatedly revised—may not be copyrightable because in general, “[p]rompts do not appear to adequately determine the expressive elements produced…” See Copyright and Artificial Intelligence, Part 2: Copyrightability at 18 – 21 (January 2025).

That said, this view might be set aside if the District Court for the District of Colorado clarifies the nature and amount of human involvement sufficient for an AI-generated work to be copyrightable in Allen v. Perlmutter. Until then, creators should consider adding sufficiently creative human-created elements to AI-generated works that might otherwise not be copyrightable and therefore freely copied by others, or using AI-generated works as a source identifier because human authorship is not required for trademark protection.