DOJ Urges Supreme Court to Deny Cert in Thaler’s Latest Bid to Copyright Work Created by AI

A Recent Entrance to Paradise, by Creativity Machine

On January 23, the United States Department of Justice (DOJ) urged the U.S. Supreme Court to reject a petition from Stephen Thaler, who seeks copyright protection for a work created by his artificial intelligence (AI) system. The DOJ argued that the U.S. Court of Appeals for the District of Columbia Circuit correctly upheld the United States Copyright Office’s refusal to register a copyright for an image that was admittedly created without human authorship.

The disputed work, titled “A Recent Entrance to Paradise”, was generated autonomously by Thaler’s AI system, known as the Creativity Machine. In his application to the Copyright Office, Thaler identified the AI system itself as the author, but the office denied the application, stating that “a human being did not create the work.” The refusal was upheld through two levels of administrative review, with the agency’s Review Board concluding that the work “was autonomously created by artificial intelligence without any creative contribution from a human actor.”

In its brief, submitted by Solicitor General D. John Sauer, the DOJ argued that the court of appeals’ decision is correct and does not conflict with any precedent from the Supreme Court or other appellate courts. The government’s central argument is that the Copyright Act, while not explicitly defining “author,” consistently presupposes a human creator. The brief pointed to multiple statutory provisions that it said “make clear that the term refers to a human rather than a machine.” For example, copyright ownership vests initially in an “author,” but a machine “cannot own property.” The duration of copyright is typically measured by the life of the author plus 70 years, but machines “do not have ‘lives’.” Meanwhile, provisions for copyright termination interests, which pass to an author’s surviving spouse or heirs, are nonsensical when applied to a machine that has no family.

Moreover, the government also rejected Thaler’s argument that the work could be considered a “work made for hire.” The brief explained that the work-made-for-hire doctrine allows employers or commissioning parties to be considered the author, but this requires an employment relationship or a written agreement, neither of which a nonhuman entity like the Creativity Machine can enter into. The court of appeals had recognized that this provision allows corporations to be legally recognized as authors, but Congress did not use the word “author” by itself to cover non-human entities. Instead, the word “considered” in the work-made-for-hire provision does the critical work of transferring ownership from the human creator to the hiring party.

Thaler’s petition for a writ of certiorari, filed last October, argued that refusing copyright to AI-generated works could endanger copyright protection for photographs and other works created with technological assistance. The petition contended that 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.”

Since Thaler filed his petition, several amicus briefs have been submitted to the Court. According to the Supreme Court’s docket, a brief from a group of academics led by Professor Shlomit Yanisky-Ravid was filed in support of Thaler, as was a brief from Phyllis Schlafly Eagles and the Eagle Forum Education & Legal Defense Fund.

In response to the petition, the DOJ’s brief emphasized that the case is narrow and does not address broader questions about copyright for works created with AI assistance. The government noted that the Copyright Office does not refuse to register works simply because AI was used in the creative process. Instead, the agency considers “the extent to which the human had creative control over the work’s expression.” In this specific case, Thaler had “expressly disavowed any participation or creative control over the work” and asked the Copyright Office to recognize the AI machine itself as the work’s “author.” Furthermore, the government argued, was the sole basis for the refusal to register.

To support its position, the DOJ cited Burrow-Giles Lithographic Co. v. Sarony, an 1884 case in which the Court upheld copyright for a photograph because it was a product of the photographer’s “intellectual invention.” The brief contrasted this with the present case, where Thaler claimed no such intellectual invention and also noting that as early as 1966, the Office stated the “crucial question” for works made with computer technology is “whether the ‘work’ is basically one of human authorship.”

The D.C. Circuit had affirmed the district court’s summary judgment in favor of the government, holding that “a work must be authored in the first instance by a human being.” The court also found that numerous statutory provisions “both identify authors as human beings and define ‘machines’ as tools used by humans in the creative process rather than as creators themselves.”

Thaler had previously sought Supreme Court review on a similar question in the patent context, asking whether an AI system could be named an “inventor” on a patent application, and the Court denied that petition in 2023. The DOJ’s brief concluded by stating that the court of appeals correctly resolved the narrow question presented by Thaler’s application and that the decision does not warrant further review.