IP Law Daily, SUPREME COURT NEWS—Copyright Office defends ‘human authorship‘ requirement at the Supreme Court, (Jan 28, 2026)

By Matthew Hersh, J.D.

The Court is urged not to open the door to copyright protection of AI-created works.

The Court of Appeals for the District of Columbia Circuit “correctly rejected th[e] contention” that copyright protection under the Copyright Act does not require human authorship, the Copyright Office has argued in a Supreme Court brief. The Office’s brief, which urges the Court to deny a petition for certiorari filed by a computer scientist who creates and works with artificial intelligence systems, also emphasized that the circuit court’s decision did not conflict with the decision of any other court of appeals and would not discourage investment in the burgeoning artificial intelligence field (Brief for the Respondents in Opposition, Thaler v. Perlmutter, No. 25-449, January 2026).

The petition arises out of a lawsuit by Stephen Thaler, a computer scientist and inventor who created a generative artificial intelligence program he named the “Creativity Machine.” The Creativity Machine, after prompting by Thaler, then generated 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.

Thaler asked the Supreme Court to intervene in the case, leading to this response by the Copyright Office.

Opposition to Petition for Certiorari. The Copyright Office 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, 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 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 is: “Whether works outputted by an AI system without a direct, traditional authorial contribution by a natural person can be copyrighted.”

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

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