AI-generated works and copyright: The impact of the Thaler case on U.S. legal practice

The rapid rise of generative AI has reignited a long-standing question at the heart of copyright law: what makes a work protectable? More specifically, who must be responsible for its creation? For more than 100 years, U.S. law has been clear: copyright law only protects works of human authorship. But the ongoing litigation initiated by Thaler has tested, challenged, and seeks to push the boundaries of this longstanding rule forcing the U.S. Copyright Office (“USCO”) and the courts to confront issues that they have largely been able to avoid up until now.
 
The human authorship requirement: A historical and legal touchstone
 
U.S. copyright law has always required human creativity, even though the statute itself never defines the term “author.” Courts have long interpreted copyright to be grounded in the creative powers of human beings. Long before the dawn of AI and before a monkey delighted us with its “selfie,” the U.S. Supreme Court (SCOTUS) grappled with whether copyright law is confined to human creations. In 1894, SCOTUS described an author as “originating, making, producing… the thing which is to be protected,” referring to human activity.[1] Approximately 10 years later, the Court emphasised that copyright protects works that reflect “the personal reaction of an individual.”[2] Although these cases could not contemplate machine-generated works, the emphasis on personhood is unmistakable.
 
The U.S. Copyright Act and office practice
 
Although 17 U.S.C. §102 does not define what an “author” is, the U.S. Copyright Office’s Compendium (“Compendium”) – its internal manual – has long reinforced that works must be created by humans. For decades, this has been the standard applied to all routine examinations. The Compendium’s Third Edition (published Dec. 2014) lays the foundation for copyright eligibility being assigned to humans. Section §306 reads: “The copyright law protects ‘the fruits of intellectual labor’ that ‘are founded in the creative powers of the mind.’”[3] Section §313.2 makes clear the holding from Burrow-Giles that a work of authorship must be created by a human being to be eligible for protection and that the USCO will “not register works produced by nature, animals,[4] or plants.” Section §313.2 further specifies that the USCO “will not register works produced by machine or mere mechanical process that operates randomly without any creative input or intervention from a human author.” In January 2025, the USCO issued a report, reinforcing these guidelines.
 
Thaler challenges the status quo
 
Dr Stephen Thaler, a computer scientist, AI researcher and prolific inventor, has brought the first direct legal challenges to the human-authorship requirement. Through his “Creativity Machine” system (and similar filings across jurisdictions worldwide), Thaler sought to register works produced entirely by AI without human input. His copyright application has been rejected by the USCO on grounds that the work lacks any human authorship. Thaler sued, arguing that the statute does not forbid AI authorship and that copyright should evolve to protect machine-generated works, particularly when the output reflects creativity. The courts disagreed. In 2023 and 2025, both the U.S. District Court for District of Columbia and the D.C. Circuit Court of Appeals both affirmed the USCO’s refusal of registration. He has petitioned SCOTUS for certiorari.[5]
 
Why the Thaler case matters
 
Whether Thaler prevails,[6] his litigation has made a significant contribution to copyright and tech law because few before him litigated what it means to be an “author” under the Copyright Act. His cases directly prompted the USCO to issue new guidelines on disclosing AI-generated content and describing human contributions in applications. Thaler’s arguments spotlight the gap between technological advances and legal doctrine. Resolving this tension will be critical to the future of the creator economy. But it also raises a bigger question: does it even make sense for machines to be copyright owners?
 
The rise of AI “Musicians”: A natural extension of the Thaler debate
 
The issues raised by Thaler’s case is no longer hypothetical or confined to visual art. Nowhere is the tension between human creativity and algorithmic output more visible than in music, where AI-generated performers – often called “AI musicians” – are topping charts, signing record deals, and releasing catalogues of music. Their growth raises practical questions the law will soon have to confront:

• Licensing & royalties:Who gets paid if no one owns the copyright?
• Streaming platform policies:Should Spotify, Apple Music, or YouTube label AI content? Restrict it? Compensate the humans who trained the models? 
• Consumer perception:If music feels “creative” and “expressive,” does the public care whether a human made it?
• Industry economics:What happens to traditional creators if labels can save money by relying on AI musicians?

 
These are important questions, but behind the “AI musicians,” humans are still writing lyrics and blending their voices with machine-generated sound. This approach isn’t so different from what movie studios are doing. A movie studio blends an actor’s voice with a singer’s to lend authenticity to a biopic, and we praise the artistry. But right now, many are demonising “AI musicians.” Is the difference really that stark?
 
Why human authorship still matters today and for the foreseeable future
 
Although the law may someday evolve, there are compelling reasons courts have been reluctant to depart from a doctrine of relying on human authorship.
 

• Copyright law is designed to reward human creativity and incentivise human creators, not machines.
• Machines do not have any intent, judgment, or expressive purpose under the law. All a machine can do is generate an output.
• If the courts and the law determine that one day non-humans can serve as an “author,”, who will own a work? The programmer? The machine? The user? And how would ownership rights get transferred?

 
For now, human authorship remains the dominant rule. However, the conversation Thaler and these new AI-artists have ignited will continue to influence – and perhaps eventually redefine – the contours of copyright protection, hopefully for the better.
 
Stacey C. Kalamaras is the founding partner of Kalamaras Law Office LLC, where she advises clients on complex brand protection issues. She has extensive experience in global trademark prosecution and enforcement and has protected some of the world’s most recognised brands in more than 150 countries. Stacey is also a frequent speaker and educator on intellectual property law. She can be reached at info@klolegal.com.
 
info@klolegal.com
1-708-320-2033
www.klolegal.com