IP Law Daily, SUPREME COURT NEWS—Challenge to human authorship requirement will not be heard by the Supreme Court, (Mar 3, 2026)

By Matthew Hersh, J.D.

An inventor sought to jettison the Copyright Office’s “human-centric” authorship requirement.

A challenge to longstanding Copyright Office policy that refuses to accept registration of works by non-human authors will not be heard by the Supreme Court. The Court, in denying a petition for certiorari by an inventor and developer of generative artificial intelligence technology, leaves in place a policy that has been repeatedly upheld by the federal courts and that was deemed to arise, in the words of the appellate court that most recently confronted the issue, “squarely out of the text of the Copyright Act” (Thaler v. Perlmutter, Dkt. No. 25-449 (U.S. cert. den. Mar. 2, 2026)).

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 had rested on several different arguments. For one, the inventor argued, the Copyright Office and the lower courts had invented a human authorship requirement without any basis in the text of the Copyright Act. The Act’s only requirement, Thaler argued, “is that copyright vests in ‘an original work of authorship,’ without any human restriction or requirement.” Indeed, Thaler argued, 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 was “human-centric” or that protection of a work “requires a particular contribution by a natural person,” Thaler argued, was “directly at odds with the Act’s language and well-settled law.”

In misinterpreting the Copyright Act this way, the petition argued, the Copyright Office and the courts had run afoul of many of the animating principles of copyright law. For example, Thaler argued, 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 argued—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 contended, this is exactly what the Copyright Office was 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 asserted, the Copyright Office’s policy, if applied across the board, would “mark the end of copyright registration for photography.” The argument emphasized 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, Thaler argued, the Copyright Office was 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 asserted, “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” supported this reading of the Act, the petition argued.

Finally, the petition relied 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 asserted, also applied to intangible property, like goodwill in a business, or cryptocurrency like Bitcoin generated from computer software.” Just like with all these examples, the petition asserted, “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.”

Copyright Office opposition. The Copyright Office, meanwhile, had urged the Court to deny the petition and refuse to hear the case. The plain text of the Copyright Act, longstanding agency practice, the unanimous decisions of other courts of appeals, and the narrow scope of this particular case, the Office asserted, all led to this conclusion.

The plain language of the Copyright Act formed the core of the Copyright Office’s argument. For example, the Office argued, while the Act provides that copyright “vests initially in the author,” a machine “cannot own property and therefore cannot properly be ‘an author’ under the statute.” In addition, under the Act, the Office noted, copyright generally endures for a term consisting of “the life of the author and 70 years after the author’s death,” but “machines do not have ‘lives’ nor is the length of their operability generally measured in the same terms as human life.” Likewise, under the Act, the Office noted, when an author dies, the “termination interest” in the copyright “is owned, and may be exercised,” by the author’s “widow or widower,” or by the author’s “surviving children or grandchildren.” But machines “have no surviving spouses or heirs,” the Office emphasized. These and other provisions of the Act, the Office concluded, warranted the conclusion that only humans can be authors.

Longstanding Copyright Office practice provided further support for that understanding, the Office emphasized. Indeed, the Office noted, it has “consistently recognized the human-authorship requirement in accordance with legal standards that predate the Copyright Act of 1976.” For example, in the agency’s annual report published in 1966, the Office noted, it explained that “the crucial question” for works created with “computer technology” was “whether the ‘work’ is basically one of human authorship.” Thus, at the time the Copyright Act was passed and for at least a decade before, the Office emphasized, “computers were not considered to be capable of acting as authors.” In light of that established understanding, the Office concluded, “the proper inference is that Congress intended the concept of authorship to be construed in accordance with pre-existing regulatory interpretations.”

The court of appeals’ decision also did not conflict with the decision of any other circuit court, the Office noted. No court of appeals has held that non-humans can be authors for copyright purposes, the Office noted—and indeed, courts of appeals have “repeatedly rejected efforts to obtain copyright in works allegedly authored by nonhumans.” For example, the Office noted, a 2011 Seventh Circuit decision held that the changing visual panorama of a “living garden” could not be copyrighted because “authorship is an entirely human endeavor” and “authors of copyrightable works must be human.” Kelley v. Chicago Park Dist., 635 F.3d 290, 304 (7th Cir. 2011). And a Ninth Circuit decision in the same year, the office noted, rejected the notion that copyright could be extended to works purported authored by “celestial beings” on the same grounds. Urantia Found. v. Maaherra, 114 F.3d 955 (9th Cir. 1997). There was no circuit split here, the Office concluded.

Finally, the Office noted, the refusal of the application would not “discourage investment in a critically new and important developing field,” as Thaler had argued. That assertion, the Office noted, “vastly overstate[d] the significance of this case and the breadth of the court of appeals’ ruling.” The Office has repeatedly made clear, the opposition brief noted, that it does not refuse to register works based solely on a human author’s use of AI or other technological tools. “On the contrary,” the Office noted, “between March 2023 and January 2025, the Copyright Office registered hundreds of works that incorporate AI-generated material.” But none of those registration decisions were at issue in this case, the Office noted, because Thaler’s own application for copyright registration disclaimed any human authorship and instead represented that the image was created “autonomously by machine.” Thus, the Office reasoned, the case presented only the narrow question whether an AI machine can itself be treated as the author of a copyrightable work, and nothing more.

The question presented in the petition was: “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.

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