The DC Circuit's Thaler v. Perlmutter decision primarily considered one question: Can a non-human machine be an author under the Copyright Act?  Its answer:  No.  As a matter of statutory construction, the Copyright Act requires all work to be authored in the first instance by a human being.  And because the Copyright Office's denial of the application relied on Dr. Thaler's representation that “the Work was autonomously created by artificial intelligence without any creative contribution from a human actor,” the Court affirmed the denial.  

The Court also affirmed the Copyright Office's rejection of Dr. Thaler's argument that the AI-generated work was a work made for hire, reasoning that the human-authorship requirement necessitates that all “original works of authorship” under the Copyright Act be created for the first instance by a human being, including those under the works-made-for-hire provision.  

The Court did not reach more interesting questions: is Dr. Thaler the work's author and is the work copyrightable by virtue of his making and using the at-issue AI system?  The Court found the issue of Dr. Thaler's authorship waived based on his prior representation that the work was created without any creative contribution from a human actor.  On the line-drawing issue of what interactions with AI systems are sufficiently creative, the Copyright Office's recent Part II of its report on Copyright and AI delineated between assistive uses of AI and prompting and concluded that the former allows for copyright protection while the latter does not.  However, in practice the Copyright Office and courts will need to grapple with difficult fact patterns and determine those uses of AI that are sufficiently creative to constitute authorship under the Copyright Act and those that aren't.