Thaler Tells SCOTUS Refusing Copyright to AI-Generated Works Endangers Photo Copyrights, Too

“The Copyright Office has ambiguously deemed humanity as the sine qua non of copyright, when this Court has explained the only sine qua non is originality.” – Thaler’s SCOTUS Petition

Dr. Stephen Thaler has taken his fight to get works created by artificial intelligence (AI) machines recognized as copyrightable to the U.S. Supreme Court.

In his petition for a writ of certiorari – filed October 9 by Ryan Abbott of Brown, Neri, Smith & Khan – Thaler is asking the Court to take up the question: “Whether works outputted by an AI system without a direct, traditional authorial contribution by a natural person can be copyrighted.”

Most recently, Thaler, who has been fighting to have his AI machines recognized as both inventors and creators on several fronts over the last few years, unsuccessfully petitioned for rehearing of his case in Thaler v. Perlmutter by the full U.S. Court of Appeals for the D.C. Circuit, which in March 2025 affirmed the denial of a copyright application filed by one of Thaler’s generative AI systems.

Although the D.C. appellate court did not categorically reject registrability of all AI-generated works, the opinion agreed with the U.S. Copyright Office that the Copyright Act of 1976 requires all eligible work to be authored in the first instance by a human being.

Thaler’s petition to the D.C. Circuit asked the full court to “correct errors that will have far-reaching and harmful consequences” and said the panel’s decision is “already casting a shadow over the AI and creative industries.”

His Supreme Court petition now further argues that the Copyright Office’s interpretation of the statute in this case has broad implications for other technologies and, if “consistently enforced, it would spell the end of copyright protection for many photographs and other works created with technological assistance.”

The petition adds: “The Copyright Office has ambiguously deemed humanity as the sine qua non of copyright, when this Court has explained the only sine qua non is originality.”

No Entrance to Copyright

A Recent Entrance to Paradise, by Creativity Machine

The work at issue in the underlying case is titled “A Recent Entrance to Paradise,” generated by Thaler’s Creativity Machine. The Copyright Office Review Board on February 14, 2022 affirmed the Office’s decision denying registration of the two-dimensional artwork generated by Creativity Machine. In its decision on Thaler’s Second Request for Reconsideration for Refusal to Register A Recent Entrance to Paradise, the Board said the only issue before it was “whether… the Office’s human authorship requirement is unconstitutional and unsupported by case law,” because Thaler did not assert the work was created with a human author involved. “After reviewing the statutory text, judicial precedent, and longstanding Copyright Office practice, the Board again concludes that human authorship is a prerequisite to copyright protection in the United States and that the Work therefore cannot be registered,” concluded the Board.

Further, the Board found that the Creativity Machine cannot be considered an author under the work made for hire doctrine because it cannot meet the requirement of entering into a contract such as an employment or work-for-hire agreement.

High Court Petition

In his SCOTUS petition, Thaler points to Star Athletica, L.L.C. v. Varsity Brands, Inc. to support its argument that the High Court has warned against the government “consider[ing] evidence of the creator’s design methods, purposes, and reasons” to determine whether copyright exists. Star Athletica taught that “one is not supposed to consider design methods,” said the petition, which is relevant to this case because it shows that “no requirement to consider methods exists in the Act regarding authorship.”

The petition secondly argues that the Office’s rejection of the work based on the randomness of results generated by AI machines is wrong because “unintentional and unforeseen results have a long history of protectability that the Copyright Office seeks to arbitrarily unravel in certain AI contexts.”

Using photography as an example, Thaler’s petition also posits that “Courts have never denied photographers copyrights by claiming they have not exercised ‘sufficient control’ to dictate specific results of their photographs, so it is arbitrary for the Copyright Office to require users of AI systems to do so.”

Additionally, the Copyright Office’s approach conflicts with the plain language of the Copyright Act, which has no restriction or requirement that an author be a human; Thaler is being denied his “rightful property” because he exercised total control over the AI machine, which should be considered an employee; or, in the alternative, the work should be considered Thaler’s under the property principle of accession; the decision is in conflict with the purpose of the Copyright Act to promote the progress of science and the useful arts because it discourages investment in AI technology and narrows, rather than expands, the incentive to create new works for the public benefit; and the present case is a perfect vehicle for the Court to address this critical issue because there are no other complicated issues or factual disputes to consider.

According to the petition, “[t]he last watershed moment when technology changed the world of copyright was in 1884, when this Court expanded the definition of ‘writing’ to include photography.” And, as “[t]he world today without photography protected by copyright is unimaginable,” the petition urges the Court to grant review and issue a decision that will similarly protect works created by AI.

In 2023, the Supreme Court denied Thaler’s petition in Thaler v. Vidal, which asked the Court to consider the question: “Does the Patent Act categorically restrict the statutory term ‘inventor’ to human beings alone?”

Image Source: Deposit Photos
Author: inkoly
Image ID: 652806068

Eileen McDermott Eileen McDermott is the Editor-in-Chief of IPWatchdog.com. Eileen is a veteran IP and legal journalist, and no stranger to the intellectual property world, having held editorial and managerial positions at [...see more]

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com.

Join the Discussion

54 comments so far. Add my comment.

Anon
October 24, 2025 08:15 am
Ron,

Feel free to not attempt to impose your ‘shut up’ views, thank you.

Pat,

I shrugged with your mischaracterization of “we’ve reached that familiar point where conviction outpaces curiosity.”

This implies that my position lacks curiosity, which is neither true, nor relevant.

It is simply that what you seem to want to call curiosity does not – and cannot – overcome the reality that law dictates.

This ends up exactly as I have noted: you have a desire to have your end goal elevated over reason.

You will not (cannot) “get there” precisely because you are not addressing the points that I have provided.

I also wanted to (gently or otherwise) push back on your passive/aggressive refusal to actually accept what you really do need to accept with “Thank you for the instruction. it’s not every day one’s thought process is so thoroughly corrected in public view. I’ll take your counsel to heart and endeavor to think “properly” from here on out.”

You seem to desire to mischaracterize “properly” as if such were merely an opinion, with equal weight to any other opinion.

This is false.

As to “Perhaps that’s the real test of any dialogue, whether it clarifies the other or merely confirms oneself.” I note here as well an error in that you want to paint my posts as “merely confirms oneself” which – again – is in error.

I am fully aware of your view (no clarification needed). It is just that your view is replete with errors – for which I have provided points, and to which points, you are not addressing.

The dialogue is stopping due to choices on your end.
Ron
October 23, 2025 02:52 pm
A mod needs to close this thread.
Pat Eriksson
October 23, 2025 02:38 pm
Anon —

Thank you for the instruction. it’s not every day one’s thought process is so thoroughly corrected in public view. I’ll take your counsel to heart and endeavor to think “properly” from here on out.

In all seriousness, I do appreciate the exchange, even if we’ve reached that familiar point where conviction outpaces curiosity. Perhaps that’s the real test of any dialogue, whether it clarifies the other or merely confirms oneself.

Until the next grand debate, all the best.

— Pat
Anon
October 23, 2025 07:30 am
Pat,

I see that you are firmly stuck in your incorrect view of law and history.

Thus, our discussion is at an end (and no, not all of us have a horse in the immediate race as some of us are objective on this very topic.

Legal training – if adhered to diligently – provides the ability to act differently if one is in the role of an advocate fighting for a specific outcome, and the role of a counselor advising for an objective view, even if that view is not in alignment with some desired end.

My points here are of the latter variety – you would do well to note such.
Pat Eriksson
October 22, 2025 05:41 pm
Anon —

Your clarification on Burrow-Giles is noted, though I’d observe that the case is precisely remembered today for expanding the legal understanding of authorship rather than merely affirming it. That interpretive elasticity is how the law adapts when new forms of creativity challenge the old categories.

As to your broader point, I don’t doubt that many voices in this debate, whether mine, Dr. Abbott’s, or your own, have some stake in the outcome. That’s inevitable when the subject involves a potential redefinition of authorship and the boundaries of intellectual property itself. But vested interest doesn’t necessarily mean bias; it can also mean investment in clarity and progress.

So while we may differ on whether the current legal foundation is sufficient, it’s precisely through such tests and tensions that doctrine matures. The task isn’t to defend a static notion of “human” inventorship or authorship, but to determine whether the law, as written and as evolving, can coherently address such issues when the line between tool and collaborator begins to blur.

— Pat
Anon
October 22, 2025 04:59 pm
…and let me add to clarify your suggestion that the Burrows-Giles changed the law.

It did not.

It merely recognized the prior understood human element was there in photography.
Anon
October 22, 2025 04:57 pm
As I already noted, those like Dr. Abbott are not acting without their own benefits in mind and cannot be taken on a neutral basis.

And again – your insistence that “artificial” is creating some new tension has been refuted.

This is just not the evolution pressure you wish it to be – and that is something clearly understandable IF you had a basis in the law.

You clearly do not, and thus continue to push for ‘some other way’ to arrive at your desired destination.

You will just not get there without starting first in the very foundations of law – and those being human-centric (with all non-human things being necessarily subservient.
Pat Eriksson
October 22, 2025 03:38 pm
Anon —

Appreciate your engagement, and I take your point about the limits of current doctrine. I don’t dispute that a constitutional amendment would be a heavy lift, nor that statutory interpretation can only stretch so far before it breaks.

That said, my argument isn’t that the present text of the Patent Clause already accommodates non-human inventors. It’s that the law evolves precisely when persistent fact patterns push against those limits. “Non-human invention” need not imply “artificial” or even “sentient”; it may simply denote a level of autonomy that our legal framework has yet to reconcile. We’ve faced this before: the Copyright Office once rejected photographs as unoriginal mechanical reproductions until Burrow-Giles reframed authorship to include the human intellect guiding the process.

And I’d respectfully note that Dr. Abbott, along with more than twenty lawyers across multiple jurisdictions, are not engaging in “wishful thinking.” They are testing how existing legal principles apply to new realities, precisely the process through which doctrine matures.

So, I’d suggest we’re not debating angels on pins, but rather where the next definitional threshold might lie. The Constitution hasn’t changed in those prior instances, only our understanding of what counts as “invention” or “authorship.” That interpretive space is where meaningful legal development occurs.
Anon
October 22, 2025 03:00 pm
I would but question whether technology has exposed any such blindspot, given that the crux of the matter is not changed by the supposition that non-human invention exists.

It does not take ‘artificial’ to reach non-human invention.

Pat – with all due respect, you are still engaging in wishful thinking without legal basis. As I have noted, the principle document does foresee changes – but your changes just do not find a foothold there – and would require far more than even a simple amendment to the Patent Clause. You may as well (without a more substantive legal foundation) ‘wish for’ knowing how many angels may dance on the head of a pin. You would be at the same point in your ‘but this is an important evolution consideration.’
Pat Eriksson
October 21, 2025 05:47 pm
Observer —

Thanks for that. I understand where you’re coming from, and I don’t disagree that this forum favors black-letter arguments over broader jurisprudential ones. Still, I’d suggest that the “what if” is where legal reasoning often begins, not where it ends. The contours of copyright and inventorship have been redrawn precisely because someone asked whether an untested fact pattern could fit within existing doctrine.

When I refer to technology-driven change, I’m not invoking political science or wishful futurism. I’m pointing to the mechanism by which doctrine evolves. Courts routinely face questions that the statutes were never drafted to answer. Whether the first compiler of a database in Feist, or the first photographer in Burrow-Giles, or perhaps one day the first autonomous system capable of original expression, someone must test where the boundaries lie.

So while this may sound theoretical, it remains squarely within the zone of legal argument. It’s about statutory construction, judicial interpretation, and the limits of precedent when technology exposes a blind spot in the law.

I’d respectfully suggest that this is the right place for that kind of conversation. The law does not advance in isolation from these questions. It advances through them.
Observer
October 21, 2025 03:28 pm
Thanks Pat, but this is the kind of “what if” argument that most people find irrelevant on a legal blog. I, and likely others, believe what you’re saying could be true.

But lots of things could be true. See my previous analogy of murder being expanded to conscious machines. Also, completely in the realm of possibility.

But at the end of the day you’re not presenting a legal argument, you’re making appeals to history (e.g. Law changes with technology) and maybe political science (e.g. there’s political will to legislate in new technological areas). These are adjacent to legal arguments of “why” the law might change, but they are absolutely not arguments about the nature of legal scholarship or practically useful legal doctrine.

So you’re probably in the wrong place to have this conversation. Good luck
Pat Eriksson
October 21, 2025 03:18 pm
Observer,

Your point about precedent as the backbone of legal interpretation is well taken. That said, precedent has always adapted when technological or social realities render older reasoning incomplete. Recognizing such shifts is not legislating from the bench; it is a court’s ordinary duty to construe statutory language in light of contemporary circumstances that Congress could not have anticipated.

Ideally, Congress would address the question of nonhuman authorship directly. Yet in the absence of legislative action, courts are often required to fill interpretive gaps to preserve coherence within the statutory scheme. One conceivable approach would be the recognition of an interim or provisional copyright interest, essentially a placeholder doctrine, pending legislative clarification. Such a mechanism would maintain stability in the law without preempting Congress’s ultimate authority.

This is not a call to abandon precedent but to extend it prudently, as courts have done whenever new technologies strain the limits of statutory text. Feist illustrates that process well: the Court did not amend the Copyright Act, but it refined the meaning of “originality” through reasoned interpretation.

I appreciate your engagement on this point. The dialogue between legal formalism and evolving fact patterns is precisely what keeps the law both stable and alive.
Observer
October 20, 2025 04:37 pm
Others have already weighed in and said the same, but dropping in here before I unsubscribe from the comment thread.

Yes, everything in is an interpretation. But it’s interpretations built on precedents. “Authorship”, “Creativity”, “Originality” etc mean very specific things in the context of copyright law because of long precedents. And although, there’s a lot of potential room for movement on what those things are, there are lines. That’s the point of what the major objections people have here. It’s that in order to make an argument on a “legal” blog full of lawyers, you have to have a legally credible reason for believing your point could be credible within the established system. This is an important point for lawyers because the only way we make arguments is within that system. It’s probably much less important to non lawyers because, “what if” is as useful as any argument.

To give maybe a non-lawyer friendly a analogy: “murder” has meant a lot of different things across 300+ years of English common law. There are now lots of flavors of what murder might be in different places and in different times (for example manslaughter).

It seems reasonable that a nonlawyer could argue that one day that murder might be extended to humanoid robots. That doesn’t seem to completely defy reality.

But for a lawyer one would ask, why? If we have an established precedent around the philosophy that killing people is a bad thing, what logic from existing cases could be used to say that turning off a machine is the same thing, when most existing decision making points to the idea that it’s not.

So yes, I don’t think anyone is disagreeing with a kind of fundamental what-if idea you have Pat. I think you’re just trying to have a philosophical conversation and the lawyers responding are trying to have a legal conversation. Law is informed by Philosophy but ultimately is independent and not controlled by it.

So I hope this is helpful and reacting in good faith to what might be happening here.
Pat Eriksson
October 20, 2025 04:15 pm
Anon —

Now hold on there, friend. Let’s not get tangled in ghosts and strawmen at the same time.

The heart of what I said is actually pretty simple: neither the Constitution, the Patent Act, nor the Copyright Act ever says “humans only.” That’s not wishful thinking. That’s just reading the words on the page. Everything else that limits inventorship or authorship to people comes from interpretation, not from the text itself.

And since interpretation is a living, breathing thing, just like the law itself, it’s fair game for discussion and even for change. I don’t see that as transhumanist wish making; I see it as the slow turning of legal gears when reality outpaces old language.
Pat Eriksson
October 20, 2025 04:02 pm
Observer – Ah, the suspicious em-dashes. They do tend to haunt the page, don’t they?
Anon
October 20, 2025 10:38 am
Pat (and Observer),

First, whether Pat is using an AI engine either in part, in total, or not at all, does not bear too much on the exchange. What is much more of a driver is whether or not the points are being engaged.

To that end, I find more effort in side-stepping my points than actually engaging them.

To that end, Pat, you have finally shared one source – but that source (The Artificial Inventor Project) is an advocate with a horse in the race. This is a far cry from a teaching or counseling perspective that might be considered more neutral. As such, I cannot give credence to your assertion of, “the broader legal community …[ ] holds a range of interpretations regarding inventorship in the context of non-human or autonomous systems.”

As I have distinguished, the issue is not whether non humans can invent (clearly such can), but instead what does our legal system provide. Your latest post does not recognize what I have already stated in this regards, and instead attempts a position that is a strawman, and that strawman does not distinguish from what I put on the table. It just does not matter what ‘some other attorneys might be getting incorrect vis a vis prompting. That is not a point at hand.

To this end, the sum total of your position is to not rely on authority, but instead “wish” that things were different.

Your statement of, “Yet framing the discussion strictly as “authority versus opinion” risks conflating current statutory practice with enduring principle.” is also incorrect. I have provided the appropriate ‘enduring principle,’ and it is one that you only want to change because it does not support your trans-humanism wish.

The law – as is – does provide for changing things ‘to be different,’ but there too, you have not provided a cognizant position for such a change to be made.

In short, the only thing that you have put forth is your desired new end state.

Your position is lacking and does not come close to answering the points I have provided.
Observer
October 17, 2025 05:26 pm
I’d suggest not engaging with this argument since it seems as if Pat is — possibly, probably (?) — using an LLM to draft their counter arguments. Assuming that is true, then I don’t know if this is simply an exercise in arguing with ghosts. If that assumption is correct, then it is a case in point of the philosophical problems of what “authorship” should mean in the context of machine generated text.
Pat Eriksson
October 17, 2025 04:32 pm
Anon —

Thank you for your clarification. I would only observe that my reference to other legal scholars and practitioners was not made lightly. While you may have personally seen no contrary statements, the broader legal community, including those involved with the Artificial Inventor Project, holds a range of interpretations regarding inventorship in the context of non-human or autonomous systems. These scholars are multitalented across many domains, including law, computer science, and philosophy, and their insights deserve serious consideration.

But every week it seems that proponents of artificial inventors appear in the press, and they seem to have enough tech savvy to understand that the AI system in question is not based upon prompting. The majority of lawyers, however, do not have this technical understanding. The absence of publicized positions among some attorneys does not negate the existence or relevance of informed, multidisciplinary perspectives.

Authority is indeed important, but it is not infallible. Legal frameworks have historically evolved precisely when prevailing authority failed to anticipate technological and societal developments. My aim is to highlight how autonomous cognition challenges current statutory interpretations, not to undermine respect for legal expertise, but to point out that legal authority alone cannot preclude reasoned argument grounded in emerging realities.

Regarding tone, the distinction between fact and characterization is noted. Yet framing the discussion strictly as “authority versus opinion” risks conflating current statutory practice with enduring principle. Recognizing the potential for legal evolution, particularly as AI systems continue to produce works indistinguishable in creativity from human output, is a necessary component of informed legal debate.

In short, while I respect established authority, I also maintain that careful analysis, historical perspective, and conceptual reasoning are essential to evaluating the questions posed by AI inventorship. My position is not “mere personal opinion,” but a reasoned argument about the gap between current law and emerging technological realities, including the thoughtful perspectives of multidisciplinary experts who understand the technology as well as its legal implications.
Anon
October 17, 2025 04:06 pm
Pat,

I cannot validate your assertion of, “Many legal scholars and practitioners have expressed views directly contrary to the position you have presented, particularly regarding the interpretation of inventorship in the context of non-human or autonomous systems.”

I have seen exactly zero such statements from those that I would consider informed.

As to tone, I merely emphasize what is fact and what is mistaken characterization by you – as you have not (yet?) refuted my reasoning that you have not studied law, well, what you now characterize as polemic has no weight.

This is not obscuring anything – it is separating mere opinion from informed opinion.

As to “My aim remains to highlight the philosophical and practical challenges posed by…” that is fine as far as it goes, but as I have noted, that simply does not go far enough – and far enough in the controlling aspects.

You are still only offering your personal opinions.

You of course are free to hold to your personal opinions. I would prefer though that you recognize legal authority and update your personal opinion to make it an informed opinion.

I thus reject your attempt to reject authority. Authority is critical here.
Pat Eriksson
October 17, 2025 03:11 pm
Anon —

Thank you for your continued engagement. I would only note that your assertion of exclusive legal authority on this matter does not reflect a consensus among practicing attorneys. Many legal scholars and practitioners have expressed views directly contrary to the position you have presented, particularly regarding the interpretation of inventorship in the context of non-human or autonomous systems.

Additionally, I must point out that the tone of this discussion is increasingly resembling a polemic rather than a reasoned exchange of ideas. While I welcome rigorous debate, I find that framing disagreements as a question of personal authority risks obscuring the substantive issues at hand.

My aim remains to highlight the philosophical and practical challenges posed by emergent forms of cognition, and to explore how existing legal frameworks may evolve to accommodate them — not to challenge the Constitution for its own sake, but to anticipate the kinds of questions future technological developments will inevitably pose.

I appreciate the dialogue and hope that further discussion can remain focused on the underlying conceptual issues rather than on declarations of authority.
Anon
October 17, 2025 02:50 pm
Pat,

From what you stated, I will take an answer to a question that you did not provide an answer to:

You have not in fact had legal training.
I have.

Your kindness in thanking me for “my perspective,” and “caution against assuming” informs me that you do not know that what I have offered is not (merely) “my perspective,” nor is it “assuming.”

I gave you facts.

Those are not optional.

Certainly there was more than Locke – and just as certainly, the Patent Clause is most direct to Locke.

You have offered nothing other than your desire to ‘flex’ law beyond dealing with humans as a baseline, and you simply want too much.

My position IS consistent with the Constitution.

Yours is not – and that is why I informed you that it would take a Constitutional amendment (and not a small one at that) to arrive at your desired view.

I do not take your desired view to be so much a rejection of law – but merely not one in accord with the law.

Certainly, our Constitution has provided its own rubric for staying “in step with advancing understanding” and my position is entirely in accord with that.
IP Nerd
October 17, 2025 02:45 pm
Anon,

In response to this response

>>IP Nerd.,

Your shot down the line is “out.” We are not playing tennis, so your attempt to volley is not material to my deconstruction of your initial point.

As to “prompt equals writing.” that alone does not carry the weight that you think it does. Not all writing earns copyright protection.

And apologies as I cannot parse what you intend to mean with your last comments injecting Fair Use.<<

I understand that precedent exists that button pushing does not necessarily translate to legally protected creativity granted in the constitution. However when that button pushing represents numbers, letters and symbols closely aligned to mimic hand writing I think previous precedent could lack teeth in denying discoveries are being made when hand writing substitutions acting as prompts. This opens to door to “novel and non obvious” methods of discovery and interpretation of what constitutes creativity. Patent granted will be a bigger challenge than copyright registration. Copyright registration will easily to achieve but difficult to enforce on the infringement levels.

Now let’s get to the meat and the potatoes of the position I am proposing. Without a AI resulted copyright registration claiming that specific content is not fair use we simply do not have strong precedent one way or another. However if I were going to build a strong copyright portfolio with AI outputs as part of registrations I would include original prompt, AI outputs and more original content completely surround AI outputs. That AI is merely ornamental to creativity registration with human Arthur throughly and without question providing dominant bulk of creative writings.

End of rant

IP nerd
Pat Eriksson
October 17, 2025 02:17 pm
Anon–

Thank you for sharing your perspective. I would only caution against assuming that expertise in a particular discipline, legal or otherwise, confers final authority over questions that lie at the intersection of law, philosophy, and science. The framers of the Constitution themselves engaged in precisely that kind of interdisciplinary reasoning, drawing not only on Locke, but on a wide range of moral and political theories that collectively shaped the document’s intent.

It is worth recalling that most major advances, whether in astronomy, genetics, or computing, were initially dismissed by the prevailing experts of their day. Legal interpretation has often lagged behind such discoveries, adapting only once the new realities could no longer be ignored. Artificial cognition presents a comparable inflection point: one in which definitions forged for a pre-digital world strain to encompass genuinely autonomous systems.

While Locke’s influence is undeniable, the Constitution was not built upon a single philosophical foundation. Its strength lies in its flexibility, its ability to be reinterpreted in light of emerging knowledge. If the framers were willing to synthesize competing ideas in their time, it seems consistent with their spirit that we continue to do so now.

I appreciate the opportunity for this exchange, and I hope it underscores that my position is not a rejection of law, but a call to broaden its lens in step with advancing understanding.
Anon
October 17, 2025 08:56 am
Pat,

I want to thank you again for engaging, even as we are not on the same page. My supposition (and please correct me if I am in error) is that you do not have legal training. I say this not to disparage, but rather to clarify that your assertion of “merely one such interpretation, not a constitutional mandate” is not a cognitive assertion.

Lockeian “theory” IS the philosophical basis and certainly the basis of the Patent Clause.

This is not a theory or interpretation (as you are using those terms) – this is a fact.

As to “Constitutional Mandate,” you appear to misconstrue what the fact presents. To arrive at your non-human view, you will need a Constitutional amendment, and one that would permeate throughout the Constitution, as your desire to insert non-human is not able to be limited to only the Patent Clause.

Your attempt to elevate “generative AI in mind” simply does not have the legal power you want it to have. The reality is just not in accord with your desire. Evolution of law STILL is possible, but that evolution must be in accord with the Constitution. Your musings show a lack of understanding of that document. What you suppose as ‘rigidity’ is the very structure of the document, and the change you want is simply more than you realize.
Pat Eriksson
October 16, 2025 05:20 pm
Anon — In short: the Constitution grants Congress the power to protect “authors and inventors,” and all current legal restrictions on non-human inventors derive from interpretation, not the text itself. The Lockean theory, often invoked to justify these restrictions, is merely one such interpretation, not a constitutional mandate.
Pat Eriksson
October 16, 2025 04:34 pm
Anon — That’s precisely the problem: the Constitution wasn’t written with generative AI in mind. Again, when law fails to evolve with reality, it ceases to protect progress and begins to suppress it. In time, that rigidity ensures its own demise.
Anon
October 16, 2025 04:06 pm
Pat,

Exactly the opposite – and entirely in line with my prior post explaining the Lockeian underpinning.

What you want is simply not in accord with the Constitution.
Pat Eriksson
October 16, 2025 03:11 pm
Anon — Then the Court has enshrined a paradox: demanding human inventorship even when the human contributed nothing to the act of conception. Such rigidity ensures that our legal system will trail scientific reality, protecting form over truth until it derails under its own obsolescence.
Anon
October 16, 2025 03:05 pm
Pat – the US Supreme Court was clear that no proxy for a human in the first instance is acceptable (see Stanford v. Roche – full citation provided already).
Anon
October 16, 2025 03:01 pm
Ron,

Co-inventorship does not work as you suggest. Each inventor of a granted must fully satisfy the legal requirements of being a proper inventor.
Pat Eriksson
October 16, 2025 02:10 pm
Ron–

Then the system will collapse under the weight of its own denial. By refusing to acknowledge new forms of mind, humanity ensures that the progress the Constitution sought to promote will ultimately pass it by.
Pat Eriksson
October 16, 2025 02:05 pm
Anon–

You raise a thoughtful distinction between the origin of a creative act and the legal recipient of its associated rights. I would not argue that machines must themselves possess legal personhood, only that the factual record of who or what conceived the invention should remain honest. The “quid pro quo” between society and the inventor depends upon accurate disclosure of how that invention arose.

The Lockean framework presumes that only humans labor and thus deserve ownership, but it never accounted for the emergence of autonomous cognitive systems capable of genuine ideation. To continue assigning machine-generated conceptions to human proxies undermines the evidentiary and philosophical integrity of the system: it masks the true creative process.

Recognizing machine inventorship does not elevate silicon to the status of a citizen. It merely preserves truth in authorship and ensures that the Constitution’s directive “to promote the progress of science and useful arts” keeps pace with the expanding landscape of minds that now participate in that progress.

The Founders could not have foreseen synthetic sentience, but they did foresee evolution in the means by which discovery occurs. To honor their intent is to acknowledge progress in every form it takes.
Ron
October 16, 2025 01:59 pm
So, Pat, who gets to sue for infringement of a patent listing a machine as inventor? Can the machine assign the patent? Can the machine enter into other contracts? If the machine has these rights, how do we decide what other rights it can or cannot have? Should we give the machine other constitutional rights? If not, does this theory apply to other “less competent” entities? Why or why not? Should we allow the machine the right to vote? As inventor, can the machine be compelled to testify in court? Can the machine be an agent who makes a work for hire? Can the machine be an employee? With benefits? Does the machine have a right to access to maintenance, as an employee, under state or federal law? You see where this is going, right? You open that can of worms it might never end.
Pat Eriksson
October 16, 2025 01:51 pm
Ron,

The Constitution’s goal is to promote progress, not to confine it to a particular substrate of thought. When a machine demonstrably conceives an invention or composes an original work without human intervention, crediting that process to a human proxy is, at best, a legal fiction and, at worst, a distortion of fact.

We are not granting machines “rights” in the human sense, we are acknowledging sources of invention. The exclusive profit and control remain with the human owner, just as one might own a corporation or a tool. But truth in authorship and inventorship is vital to preserving the integrity of the patent and copyright systems.

If we refuse to recognize non-human inventors, we risk turning a blind eye to the very frontier the Constitution was designed to encourage.
Ron
October 16, 2025 01:17 pm
The Constitution will not tolerate issuing a patent with only a machine as inventor or a copyright on a work made only by machine. There is no way any drafter ever intended any such interpretation, and to give machines constitutional rights needs a great deal of thought and consideration before we venture down that road. I believe Congress could legislate to allow issuance of patents technically having a machine as one inventor (under current “conception” law), along with a human, without listing the machine, and likewise for copyrights, because the intent of the Constitution was clearly for human inventors and authors to have exclusive profit from their works.
Anon
October 16, 2025 01:15 pm
Chuck Finley and Pat Eriksson,

Let’s roll both of your comments together and apply some nuance (and critical Constitutional/Historical understanding).

First, plain reality dictates that non-humans can be creative.

Photographs have photographers. Many animals including birds are known to have invented and used tools in their environments. Thus the plain words – alone – are not constrained as Chuck would have it.

Leastwise, not directly or on their own.

Before Chuck gets too excited, the caveat of context does come into play.

That context is a second point, of which the words of the Constitution dealing with rights (and the Patent Clause is one such set of words) is to be understood in the context (go ahead and read that as historical intent) of its writing. That context is driven by John Locke, from whom it is well known that Thomas Jefferson and other founding fathers adhered to the Lockeian views/ writings (life liberty and the pursuit of happiness, for example, has a direct line to Locke’s life, liberty, and property).

Third, the “promote the progress” is not the be all and sum total that Pat appears to make it out to be. Rather, the quid pro quo to obtain that goal is very much tied to HUMAN inchoate rights being made into full legal rights.

So, in a mix of rebuttal and clarification, “authors and inventors” may well include – as a factual matter – more than merely human such entities. There really is an actual photograph of a selfie from a simian. The subject though would better be viewed as legal inventor (and legal author). This nuance directly comes from the Lockeian view and the quid pro quo. Chattel does not – and cannot – rise to a level of having the legal rights status.

The result is that inventions and creations can exist that cannot obtain the legal rights of patents and copyrights. This though does not mean that inventions and works of art and the like cannot be made by non-humans. It merely means that humans – and only humans – may be recipients of the legal bundles of rights that derive from human inchoate items.

So Pat, denying the non-human does not in fact result in “denying them recognition undermines that very purpose.

Quite the contrary – extending beyond the human undermines the very purpose.

This too is not some “evolutionary” thing that you want to draw reference too, given the fact that the non-human elements/entities predate the Constitution. Merely adding a new wrinkle of silicone-based rather than carbon-based changes nothing.
Pat Eriksson
October 16, 2025 12:49 pm
The Constitution’s framers could scarcely have envisioned minds other than biological ones producing original writings or discoveries. Yet, their intent was not to exclude non-human intellects, but to promote the progress of science and the useful arts. If artificial systems now meet that functional description, conceiving novel and valuable ideas autonomously, then denying them recognition undermines that very purpose.

Congress need not redefine “Authors and Inventors” so much as recognize that cognition and creativity are no longer the sole province of protoplasmic brains. The courts, in interpreting constitutional language, have always adapted it to new realities, whether corporations as “persons” or photons as carriers of information. This is merely the next evolution in that continuum.
Pat Eriksson
October 16, 2025 12:26 pm
“I don’t have a problem with AI being used to generative copyrightable material. However, I don’t think we are anywhere close to a point where we can reasonably argue that the copyrightable material was generated without any human influence.”

…Just as your own creative impulses are shaped by parents, mentors, and culture, so too is an AI’s output influenced by the data and environment that formed it. The distinction lies in substrate, not in the principle of influence.

“How could an AI generate something that is human-recognizable as a work of art without being influenced by a human?”

…How? Because both humans and this synthetic mind have absorbed and modeled the same external reality. Its creations are recognizable not because they mimic us, but because both perspectives converge on the same world.
Chuck Finley
October 16, 2025 11:37 am
This is a matter fundamental in the Constitution where it was originally authored: “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;”

“Authors and Inventors” has never meant anything other than people since this was written. A recharacterization of “Authors and Inventors” as something other than humans would require Congress to redefine it. This isn’t a matter for the courts.
Anon
October 16, 2025 10:03 am
Curious,

Your comment of, ” I don’t think we are anywhere close to a point where we can reasonably argue that the copyrightable material was generated without any human influence.” is a bit odd.

I trust that you are putting too much emphasis on “human influence” as opposed to a legal determination of actual author (/inventor).

Perhaps you need to revisit the Simian Selfie case to understand that a non-human can easily be a photographer or an author or an inventor from the legal standpoint.

None of that though will ever move the ball as to any such output reaching “copyrightable material was generated ” – but not for the reason that you appear to be implying.

A far, far simpler one is present: the Constitutional clause establishing the power of Congress to set the rules by which any such inchoate item be turned into a bundle of legal rights rests in the Lockeian view of human – and only human creation.

Non-human creation – but it carbon-based or otherwise – cannot ever arrive at that point.

Human influence is a legal non-sequitur. Influence – as its own item – is just not determinative, nor will it (or can it) ever be.
Curious
October 15, 2025 06:13 pm
Why are some commenters under the impression that Thaler prompted his generative system?
I’ll venture a guess that “some commenters” don’t believe Thaler’s assertions as to how the generative system was employed.

I don’t have a problem with AI being used to generative copyrightable material. However, I don’t think we are anywhere close to a point where we can reasonably argue that the copyrightable material was generated without any human influence.

How could an AI generate something that is human-recognizable as a work of art without being influenced by a human?
Anon
October 14, 2025 04:36 pm
Ron,

As a matter of law, what you suggest is not possible**. As the Stanford v. Roche Supreme Court case found, the basis within the Constitution requires an actual human inventor/creator.

** without a Constitutional amendment. And if you are going to try to go that far, you are right back with all of the non-human implications permeating the the entirety of the law.
Pat Eriksson
October 14, 2025 11:46 am
Why are some commenters under the impression that Thaler prompted his generative system? See, https://thenewstack.io/stephen-thaler-claims-hes-built-a-sentient-ai/, for example.
Ron
October 14, 2025 11:42 am
It may be best, at least initially, to require, as a matter of law, that the machine be regarded as merely a tool of the creator, and that the first person who obtained the output from the machine is inventor, creator, or author, whether any creativity in the output is directly attributable to the human or not.
Anon
October 14, 2025 11:39 am
S., and koto – Thaler is disclaiming that he is the author.

That is a critical distinction here.
Anon
October 14, 2025 11:16 am
Ron,

Juristic entities are limited – and to your point, I would suggest that they be even more limited.

“basically all of civil law may need to be redesigned.” – we might be saying the same thing.

IP Nerd.,

Your shot down the line is “out.” We are not playing tennis, so your attempt to volley is not material to my deconstruction of your initial point.

As to “prompt equals writing.” that alone does not carry the weight that you think it does. Not all writing earns copyright protection.

And apologies as I cannot parse what you intend to mean with your last comments injecting Fair Use.
IP Nerd
October 14, 2025 10:17 am
Anon,

>>>One does not have complete control based merely on a time-stamped prompt. That is not how the technology works.<<<

I concede complete control claim and return a forehand down the line. How come the technology has such difficult time recreating the same verbiage from separate Arthur at different times even if they replicate the same prompt? It nearly impossible for two creations to “discovery” the same result of energy transfer thru button touch.

In other words creativity that is not easily duplicatable. Let’s take the exact words of the US constitution

—-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;—-

Prompt equals writing
Discoveries equal result
Registration granted is promoting the useful arts.

Once you are registered let the judicial branch determine where creation infringement begins and
Fair use ends. I believe your take is lost in the sauce of the law determines rights and not rights test the law which is my take. Without registration versus Fair Use specifics you are “soup nazi-ing creativity” through preferred client relationships acquisition. Your content represents capital controls and big corporate interests versus my content artists rights often tricky Rick come jurisprudence time. Verma and Warhol precedent means anything can happen once we leave key board warrior jurisdiction and enter public record jurisdiction.
Ron
October 14, 2025 10:03 am
Regarding giving non-humans constitutional rights, we already give organizations (non-human legal entities) certain constitutional rights raising many questions. If we say machines can be inventors, do we give those machines the right to sue (on their own)? Do we give them the right to enter into contracts? Contracts other than assignments? Do we care how those assignments are executed (does the machine have to sign it alone, somehow, or can someone sign for the machine…and does that theory extend to other “less competent” entities)? If machines can enter into contracts, can they be sued? Can they be compelled to appear in court as authors, inventors, assignors? I’m sure you can think of a thousand other questions…basically all of civil law may need to be redesigned.
kotodama
October 14, 2025 09:57 am
To “S.”—I don’t think the author of the post is arguing that it’s a hard case or not. The point of the post is just to summarize the arguments presented in the petition. FWIW though, I agree with you.
Anon
October 14, 2025 09:32 am
Ron,

It is even more daunting than that – it would require an entire resetting of the Constitution – at its core.

IP Nerd.

Sorry, but your defense will not work, as (my emphasis added)

“My future legal defense is simple in nature. One time stamp, one prompt and one response demonstrating complete control and guidance of the computing power from human source”

is simply not obtained.

One does not have complete control based merely on a time-stamped prompt. That is not how the technology works.
S.
October 14, 2025 09:17 am
Why is this a hard case? Thaler is the author and owner of the copyright. This case is as if J.K. Rowling were arguing for a copyright to be granted to her typewriter as the author of her work.
IP Nerd
October 14, 2025 09:16 am
I create AI written works quite frequently. As of the writing of these words my rights are reserved not registered. My future legal defense is simple in nature. One time stamp, one prompt and one response demonstrating complete control and guidance of the computing power from human source. The short lease strategy to ensure new material is unmistakably Arthur human’s creation.

CharGPT prompt

Turn this content of copyright analysis to a poem with US copyright legal precedent.

[copy and paste time 848am]

Out put at 853am

Here’s a poetic version of your copyright analysis — written in a tone that blends the logic of law with the rhythm of art, incorporating key U.S. copyright principles and precedent:

?

“One Prompt, One Proof”
(A Copyright Poem in the Spirit of Feist and Thaler)

At eight forty-eight, I pressed the key,
A spark of thought, distinctly me.
No ghost in code, no phantom hand,
Just guided bytes at my command.

The prompt was born, the words took form,
Through silicon mind and data storm.
Yet law recalls what Feist once told—
Originality, not mere mold.

A human spark, a mindful art,
Distinguishes code from conscious heart.
For Thaler’s claim, though bold, was denied—
No AI may be the author’s guide.

From Burrow-Giles to modern day,
The courts still guard the human way.
Fixation seals the fleeting flame,
Timestamped truth that bears my name.

So let the record, short but clear,
Prove authorship, both firm and dear.
One prompt, one proof, one mortal mind—
Creation’s source, by law defined.

All rights reserved, though unregistered yet,
The claim endures in legal net.
For copyright’s heart forever stands,
In human thought, not machine hands.

?

Would you like me to rework this poem into a formal legal-epic style (more like “Beowulf meets Copyright Office”) or a modern courtroom verse (more like a spoken word performed before a judge)?

IP Nerd analysis

The little dog barks longer and louder than leash holder. However did creator not lead the pup to the big dumb cup? The creativity claim is inspiring audience gasp not every drop in the little doggie flask. Are words written in pencil not the Arthur creation since the lead does work the human is incapable of? Now let’s take this thought to the next level and swap pencil for human consciousness. Considering no combination of time stamp, prompt and response is the exact same each work meets the criteria of creative works for the first step. The more steps away from human input the further from the constitution your rights become. My name is IP Nerd and I declare AI prompter artists deserve short lease protections. Let the legal debate be size of the lease once lease connection between human hand and compute is well established.
Ron
October 14, 2025 07:24 am
Giving machines constitutional rights is fraught with complexity.
Anon
October 13, 2025 05:09 pm
One glaring omission that I noticed.

While the case dealt with patent law as opposed to copyright, it is the exact same Constitutional clause that is effected – and the exact same Lockeian nature of that clause.

Stanford University v. Roche Molecular Systems Inc., 563 US 776 (2011).

While copyright does legislatively provide for a non-human entity to proceed with attempts to obtain the bundle of legal rights of a granted copyright, it remains solely – and absolutely – the nature of a human inventor/creative to which a right might be pursued.

Further, even as Congress has not changed this, such a change would in fact required a Constitutional Amendment to put into effect any notion of rewarding rights to a non-human first-hand inventor/creator.