On March 18, 2025, the U.S. Court of Appeals for the D.C. Circuit affirmed a district court ruling that a work created with artificial intelligence (AI) using a machine cannot be registered in the name of the machine itself because the Copyright Act requires that a copyright owner be a human being. Thaler v. Perlmutter, No. 23-5233 (D.C. Cir. Mar. 18, 2025).
The plaintiff had created a picture entitled “A Recent Entrance to Paradise” with a machine called the “Creativity Machine” that generated the artwork using AI. The plaintiff applied for copyright protection, listing the machine as the author and the plaintiff as the owner. Plaintiff argued (1) that, under the Copyright Act, an “author” need not be a human being but can be a machine; and (2) that plaintiff could be the owner of the work under the work-for-hire doctrine because non-humans such as corporations can be authors under this doctrine. As did the Copyright Office and the district court, the appellate court rejected both arguments.
As to the first point, the court noted that, while the Copyright Act does not define “author,” the statute’s use of that term is incompatible with a machine being an author. This is because, under the Copyright Act an “author”
- must have the legal capacity to own property;
- must have a lifespan since copyrights generally last for the author’s life plus 70 years;
- must have surviving spouses or children under the statute’s inheritance provision;
- must have a signature;
- must have a nationality or domicile;
- must have intentions since authors of joint works intend that the contributions be merged together.
[Slip op. at 11-12.] Machines can do none of these things. Furthermore, the Copyright Act at several places discusses machines and makes it clear that machines are tools not authors.
As to plaintiff’s work-made-for-hire argument, the court observed that that provision “allows the copyright and authorship protections attaching to a work originally created by a human author to transfer instantaneously, as a matter of law, to the person who hired the creator.” [Slip op. at 17.] The fact remains that the author of the work for hire must still be a human being.
While the plaintiff also argued that he should be considered the “author” of the work because he made and used the Creativity Machine, the court deemed this argument waived because it was not made to the Copyright Office. [Slip op. at 23.]
So, one might ask, what does this case have to do with animal law? Well, the Thaler case illustrates the arguments made by litigants seeking to get courts to convey to animals or other non-humans rights and privileges conventionally held only by human beings. One such argument in Thaler was the plaintiff’s point that the dictionary defined “author” as “one that originates or creates something” and therefore was not limited to human beings. However, as the court observed:
[S]tatutory construction requires more than just finding a sympathetic dictionary definition. We “do not read statutes in little bites,” or words in isolation from their statutory context. Kircher v. Putnam Funds Tr., 547 U.S. 633, 643 (2006). The judicial task when interpreting statutory language, instead, is to discern how Congress used a word in the law.
[Slip op. at 16.]
In fact, the D.C. Circuit made a specific connection to animal law by citing the decision in Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018), in which the Ninth Circuit held that a monkey cannot be an “author” under the Copyright Act. And, like Thaler, animal rights groups have tried to base their arguments on dictionary definitions. See, e.g., Animal Leg. Def. Fund v. U.S. Dep’t of Agriculture, 933 F.3d 1088, 1094 (9th Cir. 2019) (the term “individual” in the Freedom of Information Act cannot reasonably be interpreted to include a Bengal tiger).
As AI continues to develop and grow more robust, stayed tuned for more novel arguments in this space.
