Copyright absolutely applies to software, and this ruling doesn’t change that. If a human authors software, it remains protected under existing copyright law (17 U.S.C. 101). The real question is whether AI-generated code qualifies for copyright at all. If a model spits out code entirely on its own, then based on this ruling, it probably wouldn’t be copyrightable. But that’s not how most AI-assisted development works. Tools like GitHub Copilot still rely on human developers to modify, structure, and refine the output. That might be enough for copyright protection to apply—courts just haven’t ruled on it yet.

If a work's traditional elements of authorship were produced by a machine, the work lacks human authorship and the Office will not register it.[26] For example, when an AI technology receives solely a prompt[27] from a human and produces complex written, visual, or musical works in response, the “traditional elements of authorship” are determined and executed by the technology—not the human user. Based on the Office's understanding of the generative AI technologies currently available, users do not exercise ultimate creative control over how such systems interpret prompts and generate material. Instead, these prompts function more like instructions to a commissioned artist—they identify what the prompter wishes to have depicted, but the machine determines how those instructions are implemented in its output... As a result, that material is not protected by copyright and must be disclaimed in a registration application.

In other cases, however, a work containing AI-generated material will also contain sufficient human authorship to support a copyright claim. For example, a human may select or arrange AI-generated material in a sufficiently creative way that “the resulting work as a whole constitutes an original work of authorship.”[33] Or an artist may modify material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection.[34] In these cases, copyright will only protect the human-authored aspects of the work, which are “independent of” and do “not affect” the copyright status of the AI-generated material itself.[35]

... Dr. Thaler argues that the Copyright Act’s workmade-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.