Argued September 19, 2024 Decided March 18, 2025

No. 23-5233

STEPHEN THALER, AN INDIVIDUAL, APPELLANT

v. SHIRA PERLMUTTER, IN HER OFFICIAL CAPACITY AS REGISTER OF COPYRIGHTS AND DIRECTOR OF THE UNITED STATES COPYRIGHT OFFICE AND U.S. COPYRIGHT OFFICE, APPELLEES

Appeal from the United States District Court for the District of Columbia (No. 1:22-cv-01564)

Ryan Abbott argued the cause for appellant. With him on the briefs was Timothy G. Lamoureux.

Ryan N. Phelan was on the brief for amici curiae Legal Professors Shlomit Yanisky-Ravid, et al. in support of appellant.

Nicholas S. Crown, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney 2 General at the time the brief was filed, Daniel Tenny, Attorney, and Emily L. Chapuis, Deputy General Counsel, U.S. Copyright Office.

Before: MILLETT and WILKINS, Circuit Judges, and ROGERS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge: This case presents a question made salient by recent advances in artificial intelligence: Can a non-human machine be an author under the Copyright Act of 1976? The use of artificial intelligence to produce original work is rapidly increasing across industries and creative fields. Who—or what—is the “author” of such work is a question that implicates important property rights undergirding economic growth and creative innovation.

In this case, a computer scientist attributes authorship of an artwork to the operation of software. Dr. Stephen Thaler created a generative artificial intelligence named the “Creativity Machine.” The Creativity Machine made a picture that Dr. Thaler titled “A Recent Entrance to Paradise.” Dr. Thaler submitted a copyright registration application for “A Recent Entrance to Paradise” to the United States Copyright Office. On the application, Dr. Thaler listed the Creativity Machine as the work’s sole author and himself as just the work’s owner.

The Copyright Office denied Dr. Thaler’s application based on its established human-authorship requirement. This policy requires work to be authored in the first instance by a human being to be eligible for copyright registration. Dr. 3 Thaler sought review of the Office’s decision in federal district court and that court affirmed.

We affirm the denial of Dr. Thaler’s copyright application. The Creativity Machine cannot be the recognized author of a copyrighted work because the Copyright Act of 1976 requires all eligible work to be authored in the first instance by a human being. Given that holding, we need not address the Copyright Office’s argument that the Constitution itself requires human authorship of all copyrighted material. Nor do we reach Dr. Thaler’s argument that he is the work’s author by virtue of making and using the Creativity Machine because that argument was waived before the agency.

I

A

The Constitution’s Intellectual Property Clause gives Congress authority to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries[.]” U.S. CONST. Art. I, § 8, cl. 8. Under that provision, federal copyright protection extends only as far as Congress designates by statute. Wheaton v. Peters, 33 U.S. 591, 661 (1834).

Copyright law incentivizes the creation of original works so they can be used and enjoyed by the public. Since the founding, Congress has given authors short term monopolies over their original work. See Act of May 31, 1790, ch. 15, 1st Cong., 1 Stat. 124. This protection is not extended