For now, the Supreme Court has ended a controversial bid for a machine to be named as the original author of artwork sent to the U.S. Copyright Office for protection.
On March 2, 2026, the Court without comment denied an appeal in Thaler v. Perlmutter. Nearly a year earlier, the U.S. Court of Appeals for the District of Columbia determined the Copyright Office correctly denied Dr. Stephen Thaler’s copyright claim for an AI-created picture titled “A Recent Entrance to Paradise.”
Thaler, a computer scientist, created a generative artificial intelligence named the “Creativity Machine,” which then created the picture on its own. On a copyright registration application, Thaler listed the Creativity Machine as the work’s sole author, and himself as the work’s owner.
In his appeal to the Supreme Court, Thaler wanted the justices to consider whether “works outputted by an AI system without a direct, traditional authorial contribution by a natural person could be copyrighted.”
The case’s background
Congress created the U.S. Copyright Office under its power to regulate copyrights, as outlined in Article I, Section 8 of the Constitution. The Copyright Clause allows Congress to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
On Nov. 3, 2018, Thaler filed an application to register “A Recent Entrance to Paradise” with the Copyright Office. He stated the submission “lacked traditional human authorship” and Thaler, as the owner of the AI he created, should be the owner of any copyright related to the artwork. On August 12, 2019, the Copyright Office refused Thaler’s copyright claim because it “lack[ed] the human authorship necessary to support a copyright claim.”
The Copyright Office cited as precedent the Supreme Court ruling in Burrow-Giles Lithographic Co. v. Sarony (1884). In the Sarony decision, Justice Samuel F. Miller ruled that Burrow-Giles Lithographic violated the copyright owned by Sarony for a posed picture taken of the playwright Oscar Wilde. Burrow-Giles argued unsuccessfully that photographs were not copyrightable because they lacked human authorship, and they were the product of a machine; but the Court held the “photograph to be an original work of art, the product of plaintiff's intellectual invention.”
In its Compendium of Copyright Office Practices, the Copyright Office cites the Sarony decision and another case, In re Trade-Mark Cases, from 1879, as limiting copyright authorship to human beings. The Copyright Office uses the Compendium to state its policies.
Thaler appealed to the U. S. District Court for the District of Columbia, where District Judge Beryl A. Howell on August 3, 2023, held that the “Copyright Office acted properly in denying copyright registration for a work created absent any human involvement.” Judge Howell said copyright law “has never stretched so far, however, as to protect works generated by new forms of technology operating absent any guiding human hand, as plaintiff urges here. Human authorship is a bedrock requirement of copyright.”
A three-judge District of Columbia appeals panel affirmed the Copyright Office’s ruling and Howell’s decision. “The Creativity Machine cannot be the recognized author of a copyrighted work because the Copyright Act of 1976 requires all eligible work to be authored in the first instance by a human being,” said Circuit Judge Patricia A. Millett, writing for the court. In her decision, Millett ruled only on Thaler’s application as not conforming to the law, and not on broader constitutional issues raised by the Copyright Office and Thaler in court briefs.
“The Compendium reflects the agency’s longstanding view that copyright requires human authorship. It states that the Copyright Office ‘will refuse to register a claim if it determines that a human being did not create the work,’” the Copyright Office argued in its district court brief.
Millett also discounted Thaler’s argument that the Copyright Office’s human-authorship rule prevents copyright law from protecting any works made with artificial intelligence. “The rule requires only that the author of that work be a human being—the person who created, operated, or used artificial intelligence—and not the machine itself.”
The appeal from Thaler to the Supreme Court
In the petition for a writ of certiorari, Thaler’s attorney, Ryan Abbott, made several claims. Abbott argued that a “straightforward reading” of the Copyright Act results in the conclusion that “works without a direct, traditional authorial contribution by a natural person can be copyrighted.”
“The U.S. Copyright Office, however, imports words into the Act that Congress never drafted and requires vague elements of human authorship that arose from the Copyright Office itself—without statutory support. Indeed, the Copyright Act explicitly permits nonhuman authorship,” Abbott concluded.
Among other arguments, Abbott believed the appeals court decision, if left standing, would undermine the definition of “author” in Burrow-Giles Lithographic v. Sarony, resulting in photographs losing their copyright protection.
In his brief, Solicitor General John Sauer repeats the appeals court’s argument that the Copyright Office’s Compendium “reflects the agency’s longstanding view that copyright requires human authorship” and the Copyright Office “will refuse to register a claim if it determines that a human being did not create the work.” Sauer cited the Burrow-Giles Lithographic v. Sarony precedent.
Sauer also concurred with Judge Millett’s opinion that “adhering to the human-authorship requirement does not impede the protection of works made with artificial intelligence.” Sauer believed the case focused on the narrow question of whether an AI machine can be considered as an “author” of a copyrightable work. “It does not present any broader question about the eligibility for copyright registration of works created using AI,” he concluded.
In the end, the Supreme Court agreed with Sauer and Court of Appeals for the District of Columbia by denying Thaler’s appeal.
Scott Bomboy is the editor in chief of the National Constitution Center.
