Thaler ruling separates machine authorship from human AI-assisted work

A US district court has upheld the Copyright Office’s refusal to register an image presented as entirely machine-generated. The August 18 ruling in Thaler v. Perlmutter turns on human authorship, but also on the specific account of the work that Stephen Thaler supplied to the agency.

File photo: US Flag Backlit, ©2009 Joshua Nathanson (Jnn13), via Wikimedia Commons. CC BY-SA 3.0. Cropped/resized; responsive adaptations carry the same licence. Photographed March 12, 2009, not for this case.

Judge Beryl Howell of the District of Columbia granted summary judgment to the government and rejected Thaler’s challenge. The 15-page opinion leaves more complex questions about human involvement in AI-assisted work for other cases.

The application fixed the question before the court

Thaler sought registration for A Recent Entrance to Paradise, naming his Creativity Machine as the author and claiming ownership through his ownership of the machine. The Copyright Office’s February 2022 final refusal accepted his representation that the image had been generated autonomously, without a person’s creative contribution.

That account mattered in court. The case reviewed a completed agency decision under the Administrative Procedure Act, with review confined to the administrative record. Thaler’s later assertions about directing and controlling the system couldn’t replace the account the agency had evaluated.

Howell therefore addressed a work represented as having no human involvement in its creation. She acknowledged that future cases would raise harder questions about how much human input is enough and how far protection extends. This ruling doesn’t establish a numerical threshold for prompts, revisions or hours of work.

Ownership comes after copyrightability

The opinion separates whether copyright exists from who might own it. Thaler’s arguments about property transfer and work made for hire couldn’t supply a copyright where the court found none arose in the first place.

That distinction also separates copyright from registration. The court explains that a qualifying work can carry copyright when it’s created, independently of registration. Here, the agency’s refusal rested on the work’s lack of copyrightable human authorship, rather than a missing administrative formality.

Mixed works already have a different registration path

The Copyright Office’s March 16 guidance addresses works combining human and generated material. It calls for a case-by-case examination of how the technology operates and how the creator used it. Sufficiently creative selection or arrangement of generated material, or sufficiently original human modifications, can support protection for those human contributions.

Protection for those human contributions doesn’t extend to the AI-generated elements that lack human authorship. The guidance also distinguishes a potentially copyrightable prompt from its output: creativity in the instruction doesn’t automatically establish authorship of what the system produces. Its discussion of prompts is expressly grounded in the Office’s understanding of the generative technologies then available.

Applicants have a duty to disclose AI-generated content and briefly explain their human contribution, the guidance says. Generated material that’s more than minimal must be excluded from the claim. The guidance also provides correction procedures for pending applications and registrations that omitted that information.

Read together, the opinion and guidance make the description of the creative process consequential. Thaler’s case tested machine authorship on an expressly autonomous record. The existing registration policy asks a different, contribution-specific question for mixed works: which expressive elements were created by a person, and which parts of the claim should remain outside protection?