Robots Are Coming—But They Still Can’t Register Copyright

By: Gabriel M. Ross, James A. Trigg, Mehrnaz Boroumand Smith & Joseph Petersen (Kilpatrick)

In this piece, authors Gabriel M. Ross, James A. Trigg, Mehrnaz Boroumand Smith, and Joseph Petersen (Kilpatrick) discuss a recent appellate court ruling on AI-generated works and the human authorship requirement under U.S. copyright law.

On March 18, 2025, the United States Court of Appeals for the District of Columbia ruled that non-human entities cannot be recognized as authors under the Copyright Act of 1976. The court determined that, according to the Act, only works created by human beings are eligible for copyright protection. In a unanimous opinion authored by Judge Patricia A. Millett, the appellate court upheld the District Court’s rejection of plaintiff Stephen Thaler’s copyright application in Thaler v. Perlmutter.

Thaler had originally applied for copyright registration on May 19, 2019, for a visual artwork titled A Recent Entrance to Paradise, which was generated entirely by his custom-built AI program known as the “Creativity Machine.” In his application, Thaler named the “Creativity Machine” as the sole author, explicitly stating that the work had been created autonomously by an AI. The Copyright Office denied registration, citing the lack of human authorship. When Thaler requested reconsideration, arguing that the requirement for human authorship was unconstitutional, the Copyright Office reaffirmed its decision, stating that the work lacked any creative contribution from a human. After losing on summary judgment in the U.S. District Court for the District of Columbia, Thaler appealed to the D.C. Circuit, where the lower court’s decision was affirmed.

History of the Human Authorship Principle

The principle that copyright applies only to human creators is deeply rooted in legal history. The U.S. Constitution grants Congress the authority to promote “the Progress of Science and useful Arts” by securing exclusive rights for authors and inventors over their creations for a limited time. This framework incentivizes the production and dissemination of original works by granting creators a temporary monopoly over their intellectual property.

Since at least 1879, the Supreme Court has upheld the requirement that copyright protection applies only to works originating from human intellectual effort. In an 1884 decision, the Court reinforced this principle, emphasizing that copyright covers only the “original intellectual conceptions of the author.” As a result, the Copyright Office continues to deny registration to works that are not the product of human creativity.

Recent decisions reflect this longstanding position. In January 2025, the Copyright Office reaffirmed that copyright does not extend to purely AI-generated content or works where human involvement in shaping expressive elements is minimal. In its opinion, the Court of Appeals reiterated that the Copyright Act mandates all copyrightable works be authored “in the first instance by a human being.”

The DC Circuit’s Decision…

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