September 6, 2023
Brian Winterfeldt and Joseph Theis
Client Alert
Client Alert
Client Alert

Federal Judge Rules That Works Entirely Generated By AI Are Not Eligible For Copyright Protections

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A federal judge for the United States District Court for the District of Columbia has ruled that an image entirely generated by an artificial intelligence program without human input is ineligible for copyright protections. As AI-generated works have exponentially increased in popularity and accessibility, the degree of human involvement in their creation has been a key consideration in discussions surrounding copyright eligibility. This ruling in Stephen Thaler v. Shira Perlmutter makes clear that works in which artificial intelligence programs are the sole author, without human involvement in their creation, cannot be copyrighted. While prior cases have affirmed the notion that copyright protections are afforded only to works of human authorship, and have established precedent for which copyright has been denied to works without sufficient creative human input, this case will set the stage for further litigation regarding the copyrightability of AI-generated works.


Stephen Thaler developed and owned an artificially intelligent computer program that he called the “Creativity Machine,” which he claimed autonomously produced an original piece of visual art entitled “A Recent Entrance to Paradise.” Thaler then filed an application to register this work with the Copyright Office, identifying the Creativity Machine as the author of the work and claiming that the work had been “autonomously created by a computer algorithm running on a machine.” However, Thaler attempted to argue in the application that he should be the owner of the copyright, as “A Recent Entrance to Paradise” was a work made for hire, as he was the owner of Creativity Machine. The Copyright Office denied Thaler’s application, citing the requirement of human authorship for copyrightability. Thaler appealed this denial, challenging the traditional definition of authorship and arguing against a requirement for human creation where all other requirements for authorship are met. This appeal was similarly rejected, with the Copyright Office again insisting that works of non-human creation are not eligible for copyright protections. Thaler further challenged the Copyright Office in federal court, raising the issue of whether a work autonomously generated by AI without human input is copyrightable.


The court found that the Copyright Office correctly denied Thaler’s application for copyright registration, confirming that United States copyright law only protects works of human creation. The court acknowledged that the Copyright Act is purposefully broad, encompassing a wide variety of works, mediums, and expressions “now known or later developed” (17 U.S.C. § 102(a)). While the method of fixation provided for in the Copyright Act incorporates modes not yet invented, the constant of human creation remains an absolute requirement. Prior decisions recognized that new technologies, including the invention of the camera, were capable of producing copyrightable works with human authorship, despite their mechanical operations. The key to copyrightability, regardless of the tools involved, has been and continues to be human authorship. The court’s ruling here affirms this as the bedrock of eligibility for copyright protections.

Key Takeaway

With the prevalence of AI generated works created through a variety of online programs widely accessible to the general public, clear guidelines on copyrightability are vital to navigate a world in which artificial intelligence has already established itself as an inescapable element in entertainment. The consequences of employing AI across creative industries without proper intellectual property protections would be disastrous. Entertainment conglomerates would not allow scripts or songs or other media wholly generated by AI programs without copyright protections to be produced; however, it is unclear whether IP protections would be afforded to works in which human authors employ AI in a supplemental fashion. As the Writers Guild of America (WGA) and the Screen Actors Guild–American Federation of Television and Radio Artists (SAG-AFTRA) strike partially to prevent AI from being substantially employed in such a way to render them obsolete, further decisions like Thaler v. Perlmutter, clarifying the extent to which AI may be utilized for a work to be copyrightable, will help to assuage concerns surrounding AI in art and entertainment. Although the IP implications of creating works with enhancements or other contributions of AI are as of yet unclear, the requirement of human authorship for copyrightability has been affirmed here, and precedent has now been set specifically with regard to works entirely generated by AI.

For further information regarding the content of this article, or to discuss this or other intellectual property matters, please contact any of the following Winterfeldt IP Group team members:

Brian Winterfeldt,

Joseph Theis,

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