IP Law Daily, COPYRIGHT NEWS: Can artificial intelligence create a copyrightable work? Supreme Court is asked to take a second look, (Oct 14, 2025)

By Matthew Hersh, J.D

A new petition asks to jettison the Copyright Office’s “human-centric” authorship requirement.

“The Copyright Office has ambiguously deemed humanity as the sine qua non of copyright [even though] this Court has explained the only sine qua non is originality,” a prominent AI inventor has told the Supreme Court. The inventor’s petition for certiorari, which will surely earn points for legal creativity even if it does not lead to a hearing before the nation’s top court, argues that the human authorship requirement was invented by the Copyright Office and that property owners are entitled to “property made by their property” (Thaler v. Perlmutter, Dkt. No. 25-449 (U.S. filed Oct. 9, 2025)).

The lawsuit was brought by Stephen Thaler, a computer scientist and inventor who created a generative artificial intelligence program he named the “Creativity Machine.” The Creativity Machine, in turn, created a picture that Thaler titled “A Recent Entrance to Paradise.” The Copyright Office refused to accept registration of the work in the inventor’s name on the ground that the law recognized only works with a human authorship, not those “authored” by machines. The federal district court for the District of Columbia sided with the Copyright Office, and the D.C. Circuit followed suit.

The Copyright Office, District Court, and Court of Appeals all rested their opinion on the same logic: only human beings could be authors of copyrighted works. The human authorship requirement “arose squarely out of the text of the Copyright Act,” the court of appeals noted, because “many of the Copyright Act’s provisions make sense only if an author is a human being.” For one thing, the court noted, copyright vests initially in an “author.” Second, copyright is limited to the author’s lifespan or to a period that approximates how long a human might live. Third, a person’s right to terminate a grant can be passed on to heirs. (“Machines, needless to say, have no surviving spouses or heirs,” the court noted.) For those and many other reasons, the court of appeals found, all of these statutory provisions “collectively identify an ‘author’ as a human being.”

Petition for certiorari. Thaler’s petition rested on several different arguments. For one, the inventor argues, the Copyright Office and the lower courts have invented a human authorship requirement without any basis in the text of the Copyright Act. The Act’s only requirement, Thaler argues, “is that copyright vests in ‘an original work of authorship,’ without any human restriction or requirement.” Indeed, Thaler argues, the Act “explicitly allows for nonhuman authorship” because non-humans, such as corporations and governments, may author works made for hire. Thus, the Office’s claim that authorship is “human-centric” or that protection of a work “requires a particular contribution by a natural person,” Thaler argues, is “directly at odds with the Act’s language and well-settled law.”

In misinterpreting the Copyright Act this way, the petition argues, the Copyright Office and the courts have run afoul of many of the animating principles of copyright law. For example, Thaler argues, the Supreme Court has explained in other contexts that the question of whether copyright exists in a work cannot hinge on the government “consider[ing] evidence of the creator’s design methods, purposes, and reasons.” The courts have also emphasized, the inventor argues—drawing on language that dates back to Justice Holmes—that persons trained only in the law must not “constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.” Yet in denying protection to the work of AI, the inventor contends, this is exactly what the Copyright Office is doing—“placing a judgment on AI users, policing the methodology of generating creative works and explicitly denying copyright based solely on the manner in which a work was made.”

Moreover, the petition asserts, the Copyright Office’s policy, if applied across the board, would “mark the end of copyright registration for photography.” The argument, which will likely be poorly received by shutterbugs everywhere, emphasizes that many photographs arise out of “a photographer’s luck at being in the right place at the right time, even when capturing newsworthy events that are, essentially, purely factual moments.” Thus, by denying copyright to human users of AI programs that generate visual artworks in a fixed medium or other copyrightable material, the Copyright Office is requiring “more direct control” than in any other context. “If Dr. Thaler were to randomly take photos throughout the day without any rhyme or reason,” the petition asserts, “he would be the author of those photographs. By using an AI to create throughout the day, however, the Copyright Office has deemed the Work uncopyrightable.” No “consistent principle” supports this reading of the Act, the petition argues.

Finally, the petition relies on “a longstanding principle in property law, sometimes referred to as accession or the fruit of the tree doctrine, under which a property owner owns property made by their property.” That principle, the petition asserts, also applies to intangible property, like goodwill in a business, or cryptocurrency like Bitcoin generated from computer software.” Just like with all these examples, the petition asserts, “Dr. Thaler created and owns the original property—the AI system he used to generate the work. Its output, of all kinds, automatically vests in him.”

The question presented in the petition is: “Whether works outputted by an AI system without a direct, traditional authorial contribution by a natural person can be copyrighted.”

The Case is Dkt. No. 25-449.

Attorneys: Ryan Abbott (Brown, Neri, Smith & Khan, LLP) for Stephen Thaler. D. John Sauer, Solicitor General, U.S. Department of Justice, for Perlmutter, Shira.

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