Artificial intelligence can’t be credited with creating a copyright-protected work because human authorship is required, a D.C. Circuit panel ruled Tuesday.

Computer scientist Stephen Thaler argued a copyright should be registered to his AI program for two-dimensional art titled “A Recent Entrance to Paradise.” But copyright protects human creation, and Thaler waived his alternative argument that he created the work through creating the “Creativity Machine” AI program, according to the opinion from the US Court of Appeals for the DC Circuit.

The opinion by Circuit Judge Patricia A. Millett lays down the first precedential marker regarding how copyright law treats works created by AI. While it sided with the US Copyright Office’s operating position by finding human authorship is required for registration, it could create or reinforce perceptions in creative industries that AI’s contributions to a work represent unprotectable creative choices that can be freely copied.

The panel declined to rule more broadly on whether creating AI or prompting it could give rise to copyright protection, instead simply rejecting the concept of autonomous authorship. Millet wrote that the text of the Copyright Act of 1976 foreclosed non-human authorship in several ways. For example, Millet wrote, that law treats copyright as a property right, an entity that can’t own property can’t be an author.

The Copyright Office refused to register Thaler’s image because it was generated by a machine. Thaler sued the office, but the US District Court for the District of Columbia ruled against him , finding “courts have uniformly declined to recognize copyright in works created absent any human involvement.”

The district court also said Thaler waived his alternative argument at the Copyright Office that he’s the author, because while he raised it in his request for reconsideration he also continued to maintain the AI was the author. The panel suggested at oral argument —and reiterated in its opinion—that he didn’t properly challenge that finding.

Circuit Judges Circuit Judges Robert L. Wilkins and Judith W. Rogers joined the opinion.

Brown Neri Smith & Khan LLP represents Thaler. The Justice Department represents the Copyright Office.

The case is Stephen Thaler v. Shira Perlmutter , D.C. Cir., No. 23-5233, 3/18/25.