On March 2, 2026, the U.S. Supreme Court denied the petition for a writ of certiorari in Thaler v. Perlmutter, No. 25-449, ending a multi-year effort to secure copyright protection for a work, “A Recent Entrance to Paradise,” autonomously generated by artificial intelligence.
Background
Dr. Stephen Thaler, a computer scientist, created a generative AI system called the “Creativity Machine.” In 2019, he applied to register copyright in an artwork titled “A Recent Entrance to Paradise” with the U.S. Copyright Office below. Thaler described the work on his application as “Created autonomously by machine” and listed the Creativity Machine as the work’s sole author and himself as just the owner of the copyright in the work. The Copyright Office denied registration because a human being did not author the work.
The D.C. Circuit’s Opinion
After the district court affirmed on summary judgment the Copyright Office’s denial, the D.C. Circuit affirmed, holding that the Copyright Act of 1976 requires all copyrightable work to be authored in the first instance by a human.
The court undertook a comprehensive textual analysis, observing that numerous provisions of the Copyright Act presuppose human authors—references to an author’s “lifespan” and “death,” surviving “widow or widower,” “children or grandchildren,” “domicile,” “nationality,” and capacity to form “intention” and execute a “signature” all point to human beings, not machines. Further, the Copyright Act’s ownership provision presumes the legal capacity to hold property. The court also noted that every time the Copyright Act references machines, they are characterized as tools used by authors rather than as authors themselves. This reading was reinforced by the Copyright Office’s longstanding interpretation, dating to at least 1973, and by the conclusions of the National Commission on New Technological Uses of Copyrighted Works, which described computers as “inert instruments” incapable of authorship. Critically, the court emphasized that the human authorship requirement does not bar copyright in works made with AI assistance. It requires only that the author be a human, not the machine itself.
Thaler’s Petition for Certiorari
In his October 2025 petition to the Supreme Court, Thaler characterized the question presented as “[w]hether works outputted by an AI system without a direct, traditional authorial contribution by a natural person can be copyrighted.” He argued that the Copyright Office’s human authorship requirement is a non-statutory, agency creation unsupported by the text of the Copyright Act or the Constitution. He argued that the Office was impermissibly policing methods of creation and denying him his rightful property (i.e., copyright in the work). He also contended that the Copyright Act already permits non-human entities, such as corporations, to be treated as “authors” under the work-made-for-hire doctrine and that precedent like Star Athletica forecloses inquiry into how a work is produced. Thaler further argued that the Office’s human-authorship requirement originates within the agency and is not grounded in statute or case law. Thaler also argued that the Office’s test is inconsistent with the protection of photography and the general rule that one owns property created from own’s own property. He drew parallels to copyright law’s embrace of photography as protected works.
Thaler also leaned into policy arguments. Namely, the Office’s policy discourages investment in AI technology, a critical field, and thus runs counter to the Copyright Act’s purpose of promoting the progress of science and useful arts.
The Government’s Opposition
On behalf of the government, the Solicitor General urged the Court to deny certiorari, arguing that the D.C. Circuit correctly interpreted the term “author” through the Copyright Act’s text and structure. The government characterized the question presented as “[w]hether the court of appeals correctly upheld the Copyright Office’s refusal to register a claim to copyright in an image for which no human author had been identified.” The government emphasized that this case presents only the narrow question of whether an AI machine can itself be treated as an author—not the broader question of whether humans who use AI tools can claim copyright. It echoed the circuit court’s reasoning that the Copyright Act is replete with uniquely human features, including those in work-made-for-hire relationships. The government noted that the Copyright Office has registered hundreds of works incorporating AI-generated material where sufficient human authorship was demonstrated. And Thaler’s argument that he owns the property of his property is unavailing as this principle is different from whether he owns a copyright. Because Thaler expressly disclaimed any creative human contribution on his application, the government argued, this case was a poor vehicle for resolving broader questions about AI-assisted creativity. The narrow issue also diminished the case’s importance for the policy issues Thaler identified.
Thaler’s Reply
In reply, Thaler argued that the Copyright Office’s policy operates as a per se rule against copyright for AI-generated content, pointing to the Office’s rejection of applications for AI-assisted works involving extensive human prompting. Congress has not endorsed the Copyright Office’s human-authorship requirement and reading such Congressional silence as deference to agency interpretation is improper. He reiterated that the Copyright Act’s text encompasses non-human authors and that the Supreme Court’s precedent precludes inquiry into the means of producing a work. He urged the Court to resolve the question now rather than wait years for a circuit split. Thaler also warned that the Copyright Office’s policy places the United States at a competitive disadvantage relative to countries, like China and the UK, that currently afford copyright protection to “AI-generated works.”
Key Takeaways
- Human authorship remains a firm requirement under U.S. copyright law. A work must be authored in the first instance by a human being to qualify for copyright protection.
- AI-assisted works can still be copyrighted. Both the D.C. Circuit and the Copyright Office have made clear that use of AI as a creative tool does not automatically disqualify a work from copyright protection. The determinative question is whether, and to what extent, a human exercised sufficient creative control over the work’s expression. Practitioners should advise clients to document their creative contributions when using generative AI in the creation process.
- The line between AI-assisted and AI-generated works remains contested. While the Thaler case involved the extreme scenario of a work attributed entirely to a machine, difficult line-drawing questions persist. The Copyright Office has denied registration even where applicants described substantial prompting efforts. How much human involvement is sufficient to constitute authorship in AI-assisted works remains an evolving and unsettled area of law. Jason Allen’s appeal to the U.S. District Court of Colorado of the Copyright Office’s refusal to register his award-winning image “Théâtre D’opéra Spatial,” created with significant prompting using the AI system Midjourney, may be the next battle that provides clarity on this issue.
