Mastermind by Another Name: The Test the DABUS Order Says It Didn’t Apply

Introduction

The Registrar of Copyrights passed a 48-page order on 31 August 2026 refusing Dr Stephen Thaler’s application to register “A Recent Entrance to Paradise” with his AI system, DABUS, named as the author. 1 The order found the work to be original under Section 13, DABUS not to be an author, Thaler to be the author on his own account, and the application to fail due to Thaler’s refusal to amend the author field. This blog explores a narrower question: having disclaimed any intention to create a test, did the Registrar leave one behind all the same?

Background

Section 2(d)(vi) of the Copyright Act, 1957 defines the author of a computer-generated work as “the person who causes the work to be created.” Section 13 requires originality, and Section 17 vests first ownership in the author. The application was considered under Section 45 read with Rule 70 of the Copyright Rules, 2013. 2 The Registrar framed four questions: 3 (1) whether the work was original under Section 13; (2) who, on the Applicant’s facts, caused the work to be created; (3) whether the ownership claim was consistent with Sections 17 to 19; and (4) whether DABUS could be named in the Register as the “generator” of the work. On the facts, Thaler built and trained DABUS, supplied his own photographs and curated text, and initiated the run. When given the opportunity at the hearing to name himself as author under Section 2(d)(vi),he declined. 4

Critical Analysis

(a) Issue Identification

Section 2(d)(vi) does not use the words “mastermind”, “effective cause”, “creative control” or “principal architect”. Paragraph 105 of the order says that such expressions are not additional statutory requirements but descriptive aids. 5 The question is whether the order’s reasoning respects that disclaimer, or whether it replaces the statutory text with an uncodified threshold.

(b) Case Laws

Aalmuhammed v. Lee. The Registrar cited this case in paragraphs 99–104. 6 It concerned a consultant claiming joint authorship of the film Malcolm X. The Ninth Circuit laid down three criteria for joint authorship: superintendence of the work through control, a shared intent to be co-authors, and audience appeal dependent on both contributions. It observed that control “in many cases will be the most important factor.” 7 The test was designed to choose between several human contributors to a film, not to determine whether any human authors a machine’s output.

Burrow-Giles Lithographic Co. v. Sarony. This case reaches the order through the extract quoted in Aalmuhammed. The phrases “inventive or master mind” and “gives effect to the idea” are English authorities quoted in Burrow-Giles, which in turn Aalmuhammed quoted. Burrow-Giles itself defined the author as “he to whom anything owes its origin.” 8 This definition concerns origin, not control, and it coincides with the statutory phrase “causes the work to be created”. The lineage splits: the Burrow-Giles strand supports a causation-based reading of Section 2(d)(vi), and the control language is Aalmuhammed’s own comment on film co-authorship.

Eastern Book Company v. D.B. Modak. The Registrar applied this case for originality, requiring skill and judgment with a minimal degree of creativity. 9 Paragraph 47 states that where a person supplies and curates inputs and configures and initiates a non-trivial generative process, the lack of real-time human intervention does not undermine originality. Paragraph 46 adds that the author need not have manually selected every expressive element. 10 Originality and authorship are thus distinct inquiries.

(c) Gaps and Inconsistencies

The disclaimer and the test’s operative use. Paragraph 105 expressly disclaims “creative control” as an additional statutory requirement. Paragraph 127 asks who “exercised such creative control and made such proximate and material arrangements” that the work may be regarded as caused by that person. 11 A defender of the order will argue that control is just evidence of causation. The text resists this interpretation by being conjunctive: the requirement is creative control and arrangements, not control as a means of showing them. The order’s other usages are consistent. A heading names the “mastermind” test; paragraph 110(a) rejects DABUS partly because it “is not the mastermind”; and paragraph 116 asks whether DABUS “passes” the test. 12

The causation problem. Since every work has many causes, a causation standard must specify which of them is legally relevant. Interpreted charitably, paragraph 110(b) only rejects Thaler’s immediate-cause theory, while paragraph 114 adopts causation as against generation, and the two are compatible. 13 The difficulty is that the order expresses no selection rule in statutory terms. Paragraph 91 requires “legally attributable causation” but does not define it. The rule actually applied comes from Aalmuhammed’s control language in paragraphs 102–104 and from paragraph 127.

The split-actor problem. The order’s reasoning points in two directions once the developer and the user are different people. Paragraph 98 excludes the developer who does nothing work-specific. Yet the justification for Thaler’s authorship in paragraphs 111–112 hinges on the architecture, training method and parameters he laid down, which a mere user never touches. 14 Paragraph 47 describes the qualifying person as one who supplies inputs, configures and initiates the process. A prompter supplies and initiates but does not configure; a developer configures but supplies nothing for the particular work. Whether “configures” extends to a detailed prompt is undefined, and paragraph 47 does not state whether its conditions are cumulative. The degree of control required, therefore, ranges from “not every element” (paragraph 46) to “creative control” (paragraph 127), and that indeterminacy is the order’s, not the Act’s.

Comparative Analysis

The United Kingdom’s Copyright, Designs and Patents Act 1988 deems the author of a computer-generated work to be “the person by whom the arrangements necessary for the creation of the work are undertaken.” 15 In Nova Productions v. Mazooma Games, the programmer who devised the game’s elements and the rules generating each frame was held to be the author under that provision; the player was not. 16 Paragraph 127’s reference to “arrangements” echoes section 9(3) without citing it. The “arrangements” limb of paragraph 127 therefore has a statutory analogue, and the “creative control” limb does not. In the United States, Thaler v. Perlmutter reached the opposite conclusion on the same artwork. The court held that a work must be “authored in the first instance by a human being”, and it did not rule on the position of AI-assisted works. 17 India’s statute expressly provides for computer-generated works, and the Registrar applied that provision to reach a different outcome.

Conclusion

The order was right on its facts. Thaler was the person who caused the work to be created, and the application failed on his refusal to amend. But the reasoning leaves behind a test the Registrar says he did not apply. Paragraph 105 disclaims creative control as a statutory requirement, and paragraph 127 requires it. The causation standard in Section 2(d)(vi) has no articulated selection rule, and the degree of control required is undefined once the developer and the user are different people. DPIIT’s Working Paper Part II, which is to address the authorship of AI-generated outputs, is the appropriate forum to settle the human-involvement threshold. 18 Until then, “creative control” should not harden into registry practice.

1 Registrar of Copyrights, Order in Diary No. 9356/2022-CO/A (Dr Stephen L. Thaler), 31 August 2026 (hereinafter “Order”).

2 Copyright Act, 1957, ss. 2(d)(vi), 13, 17, 45; Copyright Rules, 2013, r. 70.

3 Order, para. 21.

4 Order, paras 10, 16, 190.

5 Order, para. 105.

6 Order, paras 99–104.

7 Aalmuhammed v. Lee, 202 F.3d 1227, 1234 (9th Cir. 2000).

8 Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884), as quoted in Order, para. 101.

9 Eastern Book Co. v. D.B. Modak, (2008) 1 SCC 1; Order, paras 40–44.

10 Order, paras 46–47.

11 Order, paras 105, 127.

12 Order, heading preceding para. 107; paras 110, 116.

13 Order, paras 91, 110, 114.

14 Order, paras 98, 111–112.

15 Copyright, Designs and Patents Act 1988 (UK), s. 9(3).

16 Nova Productions Ltd v. Mazooma Games Ltd [2006] EWHC 24 (Ch), aff’d [2007] EWCA Civ 219.

17 Thaler v. Perlmutter, 130 F.4th 1039 (D.C. Cir. 2025).

18 Department for Promotion of Industry and Internal Trade, Working Paper on Generative AI and Copyright,Part I (8 December 2025) (reserving the authorship and copyrightability of AI-generated outputs for Part II).