Stephen Thaler , An Individual v. Shira Perlmutter

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 19, 2024 Decided March 18, 2025
No. 23-5233
S TEPHEN THALER , AN INDIVIDUAL,
APPELLANT
v.
S HIRA P ERLMUTTER , IN HER OFFICIAL CAPACITY AS R EGISTER
OF C OPYRIGHTS AND D IRECTOR OF THE UNITED S TATES
C OPYRIGHT OFFICE AND U.S. C OPYRIGHT 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

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General at the time the brief was filed, Daniel Tenny, Attorney,
and Emily L. Chapuis, Deputy General Counsel, U.S.
Copyright Office.
Before: M ILLETT and WILKINS , Circuit Judges, and
R OGERS , Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge M ILLETT.
M ILLETT, 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.

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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. C ONST. 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 as “a special
reward” to the author, but rather “to encourage the production
of works that others might reproduce more cheaply.” Google
LLC v. Oracle Am., Inc., 593 U.S. 1, 16 (2021). By ensuring

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that easily reproducible work is protected, individuals are
incentivized to undertake the effort of creating original works
that otherwise would be easily plagiarized.
The Copyright Act of 1976 is the current federal copyright
statute. Three of its provisions are relevant here.
First, the Copyright Act preempts state common law
copyright protection by immediately vesting federal copyright
ownership in a work’s author as soon as a work is created. 17
U.S.C. §§ 102(a); 201(a); 301(a). Although domestic authors
generally must register their copyrights to exercise other rights,
like the right to sue for infringement, id. § 411(a), the right to
own a copyright does not depend on registration or publication.
Second, the Copyright Act incentivizes authors by
protecting their work “for a term consisting of the life of the
author and 70 years after the author’s death.” 17 U.S.C.
§ 302(a). In that way, authors are encouraged to produce work
because they know that they can profit from it for their entire
life and that their heirs and assigns can continue to benefit for
seven decades thereafter.
Third, individuals and organizations can own copyrights
by hiring someone to create work. The Copyright Act’s work-
made-for-hire provision allows “the employer or other person
for whom the work was prepared” to be “considered the
author” and “own[] all of the rights comprised in the
copyright.” 17 U.S.C. § 201(b). Rather than enduring for the
author’s lifetime, a work-made-for-hire copyright lasts “95
years from the year of its first publication, or a term of 120
years from the year of its creation, whichever expires first.” Id.
§ 302(c).

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B
The Copyright Act is administered by the United States
Copyright Office. 17 U.S.C. § 701(a). That Office has a duty
to “[a]dvise Congress” on issues “relating to copyright,” to
“[p]rovide information and assistance” to “Federal
departments and agencies and the Judiciary,” and to “[c]onduct
studies and programs regarding copyright[.]” Id. § 701(b)(1),
(2), (4).
In addition, the Copyright Office has authority to establish
regulations to implement the Copyright Act. 17 U.S.C. § 702.
Pursuant to that authority, the Copyright Office issues
regulations governing the “conditions for the registration of
copyright, and the application to be made for registration[.]” 37
C.F.R. § 202.3(a)(1). The Copyright Office publishes these
registration regulations in the Compendium of Copyright Office
Practices to inform authors about registration criteria for
different types of work. See Copyright Office, Compendium of
U.S. Copyright Office Practices (3d ed. 2021),
https://perma.cc/9N9N-C3VU (Compendium Third Edition).
Individuals whose registration applications are denied can
seek reconsideration by the Copyright Office’s Registration
Program. If still dissatisfied, they can ask the Copyright
Office’s Review Board to reconsider their case. 37 C.F.R.
§ 202.5(b), (c). A decision by the Review Board “constitutes
final agency action,” id. § 202.5(g), and is reviewable under the
Administrative Procedure Act, 5 U.S.C. § 704; 17 U.S.C.
§ 701(e).
Copyright Office regulations have long required that any
registered work be authored by a human. See Copyright Office,
Compendium of Copyright Office Practices § 2.8.3(I),
(I)(a)(1)(b) (1st ed. 1973), https://perma.cc/J7ML-BZK6

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(Compendium First Edition) (“[N]othing can be considered the
‘writing of an author’” unless it owes its “origin to a human
agent[.]”); Copyright Office, Compendium of Copyright Office
Practices § 202.02(b) (2d ed. 1984), https://perma.cc/52MX-
6YPD (Compendium Second Edition) (“The term “authorship”
implies that, for a work to be copyrightable, it must owe its
origin to a human being.”). The current Compendium advises
that the Copyright Office “will refuse to register a claim if it
determines that a human being did not create the work.”
Compendium Third Edition § 306. That refusal extends to
works “produced by a machine or mere mechanical process
that operates randomly or automatically without any creative
input or intervention from a human author.” Id. § 313.2
C
1
Dr. Thaler is a computer scientist who creates and works
with artificial intelligence systems, Thaler Opening Br. ii, and
who invented the Creativity Machine, id. 43-44. On May 19,
2019, Dr. Thaler submitted a copyright registration application
to the Copyright Office for an artwork titled “A Recent
Entrance to Paradise.” J.A. 43. On the application, Dr. Thaler
listed the “Author” of that work as the “Creativity Machine.”
J.A. 43. Under “Copyright Claimant,” Dr. Thaler provided his
own name. J.A. 43. In the section labeled “Author Created,”
Dr. Thaler wrote “2-D artwork, Created autonomously by
machine.” J.A. 43.
The Copyright Office denied Dr. Thaler’s application
because “a human being did not create the work.” J.A. 45. The
letter cited the Supreme Court’s decision in Burrow-Giles
Lithographic Co. v. Sarony, 111 U.S. 53 (1884), in support of
its decision. J.A. 45.

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In seeking reconsideration by the Registration Program,
Dr. Thaler acknowledged the Copyright Office’s decision “was
made on the basis that the present submission lacks human
authorship[.]” J.A. 49. Dr. Thaler confirmed this “is correct”
and “that the present submission lacks traditional human
authorship—it was autonomously generated by an AI.” J.A.
49. Dr. Thaler then argued that “the Human Authorship
Requirement is unconstitutional and unsupported by either
statute or case law.” J.A. 49. Dr. Thaler claimed judicial
opinions “from the Gilded Age” could not settle the question
of whether computer generated works are copyrightable today.
J.A. 55.
The Registration Program again denied Dr. Thaler’s
application because the work lacked “sufficient creative input
or intervention from a human author.” J.A. 59.
In his request for reconsideration by the Review Board, Dr.
Thaler reaffirmed that “the present submission lacks traditional
human authorship—it was autonomously generated by an AI.”
J.A. 63. He then reiterated his constitutional, statutory, and
policy arguments against the human-authorship requirement.
J.A. 63-69. Dr. Thaler also argued he should own the copyright
under the work-made-for-hire doctrine because “non-human,
artificial persons such as companies can already be authors
under this doctrine.” J.A. 66.
The Review Board affirmed the denial of Dr. Thaler’s
copyright application based on the human-authorship
requirement. J.A. 73. The Board relied upon Dr. Thaler’s
“representation that the Work was autonomously created by
artificial intelligence without any creative contribution from a
human actor[.]” J.A. 72. The Board also rejected Dr. Thaler’s
argument that the work was made for hire on the ground that

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there was no contract between Dr. Thaler and the Creativity
Machine. J.A. 76-77.
2
Dr. Thaler sought review in the United States District
Court for the District of Columbia, and both sides moved for
summary judgment. Thaler v. Perlmutter, 687 F. Supp. 3d 140,
142 (D.D.C. 2023). In his motion, Dr. Thaler asserted the same
constitutional, statutory, and policy arguments that he had
advanced before the agency, including the argument that he
owns the copyright under the work-made-for-hire provision.
J.A. 80-115. In addition, he claimed for the first time that the
work is copyrightable because a human—Dr. Thaler—
“provided instructions and directed his AI[.]” J.A. 113.
The district court affirmed the Copyright Office’s denial
of registration. Based on the caselaw and the Copyright Act’s
text, the district court concluded that “[h]uman authorship is a
bedrock requirement of copyright.” Thaler, 687 F. Supp. 3d at
146. The court also held that Dr. Thaler could not rely on the
work-made-for-hire provision because that provision
“presuppose[s] that an interest exists to be claimed.” Id. at 150.
The “image autonomously generated” by the Creativity
Machine was not such an interest because it “was never eligible
for copyright,” so the Machine had no copyright to transfer to
Dr. Thaler even if he were the Creativity Machine’s employer.
Id. Finally, the court found that Dr. Thaler waived his
argument that he should own the copyright because he created
and used the Creativity Machine. The court stressed that, “[o]n
the record designed by plaintiff from the outset of his
application for copyright registration,” the case had presented
“only the question of whether a work generated autonomously
by a computer system is eligible for copyright.” Id. at 149-150.

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II
We review a district court’s grant of summary judgment in
a case concerning agency action de novo and, like the district
court, will set aside the agency action only if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law[.]’” Jicarilla Apache Nation v. United
States Dep’t of Interior, 613 F.3d 1112, 1118 (D.C. Cir. 2010)
(quoting 5 U.S.C. § 706(2)(A)). We “exercise independent
judgment in determining the meaning of statutory provisions.”
Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 394
(2024).
The district court had jurisdiction under 28 U.S.C. § 1331.
This court has jurisdiction under 28 U.S.C. § 1291.
III
As a matter of statutory law, the Copyright Act requires all
work to be authored in the first instance by a human being. Dr.
Thaler’s copyright registration application listed the Creativity
Machine as the work’s sole author, even though the Creativity
Machine is not a human being. As a result, the Copyright
Office appropriately denied Dr. Thaler’s application.
A
Authors are at the center of the Copyright Act. A
copyright “vests initially in the author or authors of the work.”
17 U.S.C. § 201(a). And copyright protection only “subsists
* * * in original works of authorship[.]” Id. § 102(a).
The Copyright Act does not define the word “author.” But
traditional tools of statutory interpretation show that, within the
meaning of the Copyright Act, “author” refers only to human

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beings. To start, the text of multiple provisions of the statute
indicates that authors must be humans, not machines. In
addition, the Copyright Office consistently interpreted the
word author to mean a human prior to the Copyright Act’s
passage, and we infer that Congress adopted the agency’s
longstanding interpretation of the word “author” when it re-
enacted that term in the 1976 Copyright Act.
1
Numerous Copyright Act provisions both identify authors
as human beings and define “machines” as tools used by
humans in the creative process rather than as creators
themselves. Because many of the Copyright Act’s provisions
make sense only if an author is a human being, the best reading
of the Copyright Act is that human authorship is required for
registration.
First, the Copyright Act’s ownership provision is
premised on the author’s legal capacity to hold property. A
copyright “vests initially in the author[.]” 17 U.S.C. § 201(a).
This means an “author gains ‘exclusive rights’ in her work
immediately upon the work’s creation.” Fourth Estate Pub.
Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296, 300-301,
(2019) (quoting 17 U.S.C. § 106). Because a copyright is
fundamentally a property right created by Congress, and
Congress specified that authors immediately own their
copyrights, an entity that cannot own property cannot be an
author under the statute.
Second, the Copyright Act limits the duration of a
copyright to the author’s lifespan or to a period that
approximates how long a human might live. A copyright
generally “endures for a term consisting of the life of the author
and 70 years after the author’s death.” 17 U.S.C. § 302(a). The

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Copyright Office maintains “current records of information
relating to the death of authors of copyrighted works” so that it
can determine when copyrights expire. Id. § 302(d). If the
author’s death is unknown, the Copyright Act presumes death
after “a period of 95 years from the year of first publication of
a work, or a period of 120 years from the year of its creation[.]”
Id. § 302(e). And even when a corporation owns a copyright
under the work-made-for-hire provision, the copyright endures
for the same amount of time—“95 years from the year of first
publication” or “120 years from the year of its creation[.]” Id.
§ 302(c). Of course, machines do not have “lives” nor is the
length of their operability generally measured in the same
terms as a human life.
Third, the Copyright Act’s inheritance provision states
that, when an author dies, that person’s “termination interest is
owned, and may be exercised” by their “widow or widower,”
or their “surviving children or grandchildren,” 17 U.S.C.
§ 203(a)(2), (A). Machines, needless to say, have no surviving
spouses or heirs.
Fourth, copyright transfers require a signature. To transfer
copyright ownership, there must be “an instrument of
conveyance” that is “signed by the owner[.]” 17 U.S.C.
§ 204(a). Machines lack signatures, as well as the legal
capacity to provide an authenticating signature.
Fifth, authors of unpublished works are protected
regardless of the author’s “nationality or domicile.” 17 U.S.C.
§ 104(a). Machines do not have domiciles, nor do they have a
national identity.
Sixth, authors have intentions. A joint work is one
“prepared by two or more authors with the intention that their
contributions be merged into inseparable or interdependent

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parts of a unitary whole.” 17 U.S.C. § 101. Machines lack
minds and do not intend anything.
Seventh, and by comparison, every time the Copyright Act
discusses machines, the context indicates that machines are
tools, not authors. For example, the Copyright Act defines a
“computer program” as “a set of statements or instructions to
be used directly or indirectly” to “bring about a certain result.”
17 U.S.C. § 101. The word “machine” is given the same
definition as the words “device” and “process,” id., and those
terms are consistently used in the statute as mechanisms that
assist authors, rather than as authors themselves, id. §§ 102(a);
108(c)(2); 109(b)(1)(B)(i); 116(d)(1); 117(a)(1), (c); 401(a);
1001(2), (3). In addition, when computer programs and
machines are referenced in the statute, the statute presumes
they have an “owner,” id. § 117(a), (c), who can perform
“maintenance,” “servic[e],” or “repair” on them, id.
§ 117(d)(1), (2).
All of these statutory provisions collectively identify an
“author” as a human being. Machines do not have property,
traditional human lifespans, family members, domiciles,
nationalities, mentes reae, or signatures. By contrast, reading
the Copyright Act to require human authorship comports with
the statute’s text, structure, and design because humans have
all the attributes the Copyright Act treats authors as possessing.
The human-authorship requirement, in short, eliminates the
need to pound a square peg into a textual round hole by
attributing unprecedented and mismatched meanings to
common words in the Copyright Act. See Food & Drug
Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
133 (2000) (“It is a ‘fundamental canon of statutory
construction that the words of a statute must be read in their
context and with a view to their place in the overall statutory

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scheme.’”) (quoting Davis v. Michigan Dept. of Treasury, 489
U.S. 803, 809 (1989)).
To be clear, we do not hold that any one of those statutory
provisions states a necessary condition for someone to be the
author of a copyrightable work. An author need not have
children, nor a domicile, nor a conventional signature. Even
the ability to own property has not always been required for
copyright authorship. Married women in the nineteenth
century authored work that was eligible for copyright
protection even though coverture laws forbade them from
owning copyrights. See Melissa Homestead, AMERICAN
WOMEN AUTHORS AND LITERARY P ROPERTY, 1822-1869, at
21-62 (2005); Belford, Clarke & Co. v. Scribner, 144 U.S. 488,
504 (1892) (recognizing Mrs. Terhune’s authorship when her
book’s copyright was infringed, even though, as a married
woman, she could not own property).
The point, instead, is that the current Copyright Act’s text,
taken as a whole, is best read as making humanity a necessary
condition for authorship under the Copyright Act. That is the
reading to which “the provisions of the whole law” point. John
Hancock Mut. Life Ins. Co. v. Harris Tr. & Sav. Bank, 510 U.S.
86, 94 (1993) (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S.
41, 51 (1987)).
2
The Copyright Office’s longstanding rule requiring a
human author reinforces the natural meaning of those statutory
terms.
The Copyright Office first addressed whether machines
could be authors in 1966—ten years before the Copyright Act
of 1976 was passed. That year, the Register of Copyrights

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wrote in the Copyright Office’s annual report to Congress that,
as “computer technology develops and becomes more
sophisticated, difficult questions of authorship are emerging.
* * * The crucial question appears to be whether the ‘work’ is
basically one of human authorship, with the computer merely
being an assisting instrument[.]” Copyright Office, Sixty-
Eighth Annual Report of the Register of Copyrights at 5 (1966),
https://perma.cc/QU7P-TY6N.
The Copyright Office formally adopted the human
authorship requirement in 1973. That year, the Copyright
Office updated its regulations to state explicitly that works
must “owe their origin to a human agent[.]” Compendium First
Edition § 2.8.3(I)(a)(1)(b).
In 1974, Congress created the National Commission on
New Technological Uses of Copyrighted Works (“CONTU”)
to study how copyright law should accommodate “the creation
of new works by the application or intervention of such
automatic systems or machine reproduction.” Pub. L. 93-573,
§ 201(b)(2), 88 Stat. 1873 (1974). CONTU assembled
copyright experts from the government, academia, and the
private sector to make recommendations to Congress. Prior to
the Copyright Act’s passage, the Library of Congress published
summaries of CONTU’s meetings, several of which focused on
copyright law and computer technology. In none of these
meetings did members of CONTU suggest that computers were
authors rather than tools used by authors to create original
work. See CONTU, Meeting No. 2 at 10-11 (Nov. 19, 1975),
https://perma.cc/857K-VRSB; CONTU, Meeting No. 3 at 1-11
(Dec. 18-19, 1975), https://perma.cc/EB3T-KNR4; CONTU,
Meeting No. 4 at 1-8 (Feb. 11-13, 1976),
https://perma.cc/NPG6-J8E3; CONTU, Meeting No. 6 (May 6-
7, 1976), https://perma.cc/HCX5-6ZYX; CONTU, Meeting

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No. 7 at 46-148 (June 9-10, 1976), https://perma.cc/Q795-
YVQ4.
This understanding of authorship and computer
technology is reflected in CONTU’s final report:
On the basis of its investigations and society’s experience
with the computer, the Commission believes that there is
no reasonable basis for considering that a computer in any
way contributes authorship to a work produced through its
use. The computer, like a camera or a typewriter, is an
inert instrument, capable of functioning only when
activated either directly or indirectly by a human. When
so activated it is capable of doing only what it is directed
to do in the way it is directed to perform.
CONTU, Final Report at 44 (1978), https://perma.cc/7S8T-
TAB5.
Although CONTU’s final report was not published until
1978, its conclusion that machines cannot be authors reflects
the state of play at the time Congress enacted the Copyright Act
in 1976. And when Congress amended the Copyright Act’s
provision governing computer programs shortly following
CONTU’s final report, Congress preserved the Act’s
provisions governing authorship and the language describing
machines as devices used by authors. Pub. L. No. 96-517, 94
Stat. 3015, 3028 (1980) (stating it is not infringement to copy
a computer program if the copy “is created as an essential step
in the utilization of the computer program in conjunction with
a machine[.]”).
In short, at the time the Copyright Act was passed and for
at least a decade before, computers were not considered to be
capable of acting as authors, but instead served as “inert

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instrument[s]” controlled “directly or indirectly by a human”
who could be an author. CONTU, Final Report at 44 (1978),
https://perma.cc/7S8T-TAB5. We infer Congress adopts an
agency’s interpretation of a term “when a term’s meaning was
well-settled[.]” Sackett v. Environmental Prot. Agency, 598
U.S. 651, 683 (2023). And that rule applies with double force
here where the commission Congress designated to study the
issue, CONTU, came to the same conclusion. Given all that,
the interpretation of “author” as requiring human authorship
was well-settled at the time the 1976 Copyright Act was
enacted.
3
Dr. Thaler’s contrary reading of the statutory text fails.
a
Dr. Thaler argues first that the natural meaning of “author”
is not confined to human beings. Dr. Thaler points to a 2023
dictionary definition defining “author” as “one that originates
or creates something[.]” Thaler Opening Br. 23 (citing Author,
Merriam-Webster Dictionary (2023)), https://perma.cc/S96L-
WYTS.
But statutory 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.
That process includes “a natural presumption that identical
words used in different parts of the same act are intended to
have the same meaning.” Atlantic Cleaners & Dryers, Inc. v.

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United States, 286 U.S. 427, 433 (1932). Here, the Copyright
Act makes no sense if an “author” is not a human being. If
“machine” is substituted for “author,” the Copyright Act would
refer to a machine’s “children,” 17 U.S.C. § 203(a)(2), a
machine’s “widow,” id., a machine’s “domicile,” id. § 104(a),
a machine’s mens rea, id. § 101, and a machine’s “nationality,”
id. Problematic questions would arise about a machine’s “life”
and “death[.]” Id. § 302(a). And “machine” would
inconsistently mean both an author and a tool used by authors.
Id. § 117(d)(1); see id. §§ 102(a); 108(c)(2); 116(d)(1); 117(c);
1001(2), (3).
Dr. Thaler points out that the Copyright Act’s work-made-
for-hire provision allows those who hire creators to be
“considered the author” under the Act. 17 U.S.C. § 201(b).
That is why corporations, e.g., Warren v. Fox Fam. Worldwide,
Inc., 328 F.3d 1136, 1140 (9th Cir. 2003), and governments,
e.g., Georgia v. Public.Resource.Org, Inc., 590 U.S. 255, 270
(2020), can be legally recognized as authors.
But the word “considered” in the work-made-for-hire
provision does the critical work here. It 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. See
Community for Creative Non-Violence v. Reid, 490 U.S. 730,
737 (1989). Congress, in other words, was careful to avoid
using the word “author” by itself to cover non-human entities.
For if Congress had intended otherwise, the work-made-for-
hire provision would say straightforwardly that those who hire
creators “are the author for purposes of this title,” not that they
are “considered the author for purposes of this title.”

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b
Dr. Thaler also argues that the human-authorship
requirement wrongly prevents copyright law from protecting
works made with artificial intelligence. Thaler Opening Br. 38.
But the Supreme Court has long held that copyright law is
intended to benefit the public, not authors. Copyright law
“makes reward to the owner a secondary consideration. * * *
‘[T]he primary object in conferring the monopoly lie[s] in the
general benefits derived by the public from the labors of
authors.’” United States v. Loew’s, Inc., 371 U.S. 38, 46-47
(1962) (quoting Fox Film Co. v. Doyal, 286 U.S. 123, 127
(1932)).
To that public-benefit end, “the law of copyright has
developed in response to significant changes in technology.”
Sony Corp. of America v. Universal City Studios, Inc., 464 U.S.
417, 430 (1984). Photography, sound recordings, video
recordings, and computer programs are all technologies that
were once novel, but which copyright law now protects. See
Burrow-Giles, 111 U.S. at 58; Goldstein v. California, 412 U.S.
546, 565-566 (1973); Sony, 464 U.S. at 442; Google, 593 U.S.
at 21. Importantly, that evolution in copyright protection has
been at Congress’s direction, not through courts giving new
meaning to settled statutory terms.
Contrary to Dr. Thaler’s assumption, adhering to the
human-authorship requirement does not impede the protection
of works made with artificial intelligence. Thaler Opening Br.
38-39.
First, the human authorship requirement does not prohibit
copyrighting work that was made by or with the assistance of
artificial intelligence. The rule requires only that the author of

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that work be a human being—the person who created,
operated, or used artificial intelligence—and not the machine
itself. The Copyright Office, in fact, has allowed the
registration of works made by human authors who use artificial
intelligence. See Copyright Registration Guidance: Works
Containing Material Generated by Artificial Intelligence, 88
Fed. Reg. 16,190, 16,192 (March 16, 2023) (Whether a work
made with artificial intelligence is registerable depends “on the
circumstances, particularly how the AI tool operates and how
it was used to create the final work.”).
To be sure, the Copyright Office has rejected some
copyright applications based on the human-authorship
requirement even when a human being is listed as the author.
See Copyright Office, Re: Zarya of the Dawn (Registration #
VAu001480196) (Feb. 21, 2023), https://perma.cc/AD86-
WGPM (denying copyright registration for a comic book’s
images made with generative artificial intelligence). Some
have disagreed with these decisions. See Motion Picture
Association, Comment Letter on Artificial Intelligence and
Copyright at 5 (Oct. 30, 2023), https://perma.cc/9W9X-3EZE
(This “very broad definition of ‘generative AI’ has the potential
to sweep in technologies that are not new and that members use
to assist creators in making motion pictures.”); 2 W. P ATRY,
C OPYRIGHT § 3:60.52 (2024); Legal Professors Amicus Br. 36-
37 (“The U.S. Copyright Office guidelines are somewhat
paradoxical: human contributions must be demonstrated within
the creative works generated by AI.”).
Those line-drawing disagreements over how much
artificial intelligence contributed to a particular human author’s
work are neither here nor there in this case. That is because Dr.
Thaler listed the Creativity Machine as the sole author of the
work before us, and it is undeniably a machine, not a human
being. Dr. Thaler, in other words, argues only for the

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copyrightability of a work authored exclusively by artificial
intelligence. Contrast Rearden LLC v. Walt Disney Co., 293
F. Supp. 3d 963 (N.D. Cal. 2018) (holding that companies may
copyright work made with motion capture software).
Second, Dr. Thaler has not explained how a ban on
machines being authors would result in less original work
because machines, including the Creativity Machine, do not
respond to economic incentives.
Dr. Thaler worries that the human-authorship requirement
will disincentivize creativity by the creators and operators of
artificial intelligence. Thaler Opening Br. 36. That argument
overlooks that the requirement still incentivizes humans like
Dr. Thaler to create and to pursue exclusive rights to works that
they make with the assistance of artificial intelligence.
Of course, the Creativity Machine does not represent the
limits of human technical ingenuity when it comes to artificial
intelligence. Humans at some point might produce creative
non-humans capable of responding to economic incentives.
Science fiction is replete with examples of creative machines
that far exceed the capacities of current generative artificial
intelligence. For example, Star Trek’s Data might be worse
than ChatGPT at writing poetry, but Data’s intelligence is
comparable to that of a human being. See Star Trek: The Next
Generation: Schism (Paramount television broadcast Oct. 19,
1992) (“Felis catus is your taxonomic nomenclature, an
endothermic quadruped, carnivorous by nature”). There will
be time enough for Congress and the Copyright Office to tackle
those issues when they arise.
Third, Congress’s choice not to amend the law since 1976
to allow artificial-intelligence authorship “might well be taken
to be an acquiescence in the judicial construction given to the

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copyright laws.” White-Smith Music Pub. Co. v. Apollo Co.,
209 U.S. 1, 14 (1908). The human-authorship requirement is
not new and has been the subject of multiple judicial decisions.
The Seventh Circuit has squarely held that authors “of
copyrightable works must be human.” Kelley v. Chicago Park
Dist., 635 F.3d 290, 304 (7th Cir. 2011). And the Ninth Circuit
has strongly implied the same when deciding that an author
must be a “worldly entity,” Urantia Foundation v. Maaherra,
114 F.3d 955, 958 (9th Cir. 1997), and cannot be an animal,
Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018).
Finally, even if the human authorship requirement were at
some point to stymy the creation of original work, that would
be a policy argument for Congress to address. U.S. C ONST. Art.
I, § 8, cl. 8. “Congress has the constitutional authority and the
institutional ability to accommodate fully the varied
permutations of competing interests that are inevitably
implicated by such new technology.” Sony, 464 U.S. at 431.
This court’s job, by contrast, “is to apply the statute as it is
written,” not to wade into technologically uncharted copyright
waters and try to decide what “might ‘accord with good
policy.’” Burrage v. United States, 571 U.S. 204, 218 (2014)
(quoting Commissioner v. Lundy, 516 U.S. 235, 252 (1996));
see also Teleprompter Corp. v. Columbia Broad. Sys., Inc., 415
U.S. 394, 414 (1974) (“Detailed regulation of these
relationships, and any ultimate resolution of the many sensitive
and important problems in this field, must be left to
Congress.”). Accommodating new technology “is for
Congress.” Fortnightly Corp. v. United Artists Television, Inc.,
392 U.S. 390, 401 (1968).
In that regard, it bears noting that the Political Branches
have been grappling with how copyright law should adapt to
new technology. The Copyright Office is studying how

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copyright law should respond to artificial intelligence,
Artificial Intelligence and Copyright, 88 Fed. Reg. 59,942,
59,942 (Aug. 30, 2023), and is making recommendations based
on its findings, see Copyright Office, Copyright and Artificial
Intelligence, Part 1: Digital Replicas at 57 (Jul. 31, 2024),
https://perma.cc/8CUH-DN5A (recommending a statutory
right for individuals to sue those who make deepfakes with
their likeness); Copyright Office, Copyright and Artificial
Intelligence, Part 2: Copyrightability at 32-40 (Jan. 29, 2025),
https://perma.cc/W9VR-TLQP (recommending against
changing the law governing the copyrightability of work
generated by artificial intelligence). Also, Congress recently
completed a report that addresses the problem of artificial
intelligence and intellectual property. U.S. House of Rep.,
Bipartisan House Task Force Report on Artificial Intelligence
at 111-136 (Dec. 2024), https://perma.cc/Y69R-DM3D.
Congress and the Copyright Office are the proper audiences for
Dr. Thaler’s policy and practical arguments.
4
Because the Copyright Act itself requires human
authorship, we need not and do not address the Copyright
Office’s argument that the Constitution’s Intellectual Property
Clause requires human authorship. The Copyright Act
provides “a sufficient ground for deciding this case, and the
cardinal principle of judicial restraint—if it is not necessary to
decide more, it is necessary not to decide more—counsels us to
go no further.” PDK Laboratories Inc. v. United States Drug
Enforcement Agency, 362 F.3d 786, 799 (D.C. Cir. 2004)
(Roberts, J., concurring in part and concurring in the
judgment).

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IV
Dr. Thaler raises two alternative arguments in support of
his copyright application. Neither succeeds.
First, Dr. Thaler argues that the Copyright Act’s work-
made-for-hire provision allows him to be “considered the
author” of the work at issue because the Creativity Machine is
his employee. Thaler Opening Br. 52-56; 17 U.S.C. § 201(b).
That argument misunderstands the human authorship
requirement. The Copyright Act only protects “original works
of authorship.” 17 U.S.C. § 102(a). The authorship
requirement applies to all copyrightable work, including work-
made-for-hire. The word “authorship,” like the word “author,”
refers to a human being. As a result, the human-authorship
requirement necessitates that all “original works of authorship”
be created in the first instance by a human being, including
those who make work for hire.
Second, Dr. Thaler argues that he is the work’s author
because he made and used the Creativity Machine. Thaler
Opening Br. 42-51. We cannot reach that argument. The
district court held that Dr. Thaler forwent any such argument
before the Copyright Office. Thaler, 687 F.Supp.3d at 150.
And in his opening brief, Dr. Thaler did not challenge the
district court’s finding of waiver. Dr. Thaler offered only a
single sentence in his opening brief, in which he describes the
district court’s conclusion as “based on a misunderstanding of
the record below.” Thaler Opening Br. 43. That “bare and
conclusory assertion” is insufficient to preserve an argument
for resolution on the merits. Abdullah v. Obama, 753 F.3d 193,
199 (D.C. Cir. 2014).

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V
For the foregoing reasons, the district court’s denial of Dr.
Thaler’s copyright application is affirmed.
So ordered.

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