Supreme Court Denies Thaler’s Latest Attempt to Register Copyright to AI-Generated Image

Today, the U.S. Supreme Court issued an order list including the denial of a petition for writ of certiorari filed by Dr. Stephen Thaler that challenged federal agency and court rulings preventing copyright registration for an image generated entirely by artificial intelligence (AI). In following the U.S. Solicitor General’s call to deny cert to Thaler’s appeal, the Supreme Court declined invitations from both sides of the AI authorship debate to clarify the copyrightability of works that are substantially AI-generated.

Thaler filed his petition early last October, challenging the Court of Appeals for the D.C. Circuit’s ruling affirming that human authorship as governed by the Copyright Act of 1976 requires human authorship in the first instance. About a month later, an amicus brief filed by a collection of university professors urged the Supreme Court to grant Thaler’s petition and rule against the D.C. Circuit to support continued development of nascent AI technology and prevent inequalities that could negatively impact independent creators using AI tools to create original works.

Phyllis Schlafly Eagles

On November 12, conservative advocacy organizations Phyllis Schlafly Eagles and Eagle Forum Education & Legal Defense Fund (ELDF) filed an amicus brief asking the Supreme Court to take up Thaler’s petition and confirm that AI-created works are not eligible for copyright under U.S. law. As their amicus brief notes, the Supreme Court has not issued any substantial ruling on AI despite the technology’s proliferation across financial markets and political discourse. “Continued silence by the Court on this issue is no longer helpful,” amici wrote.

While the D.C. Circuit did not squarely address the copyrightability of AI-generated works, its ruling in Thaler left the door open to Congress eliminating the human authorship requirement if it “stym[ies] the creation of original work.” Similar to how the Supreme Court finally answered nagging questions about the copyrightability of data by expounding the originality requirement in Feist Publications v. Rural Telephone Service Company (1991), amici argue that the Court is uniquely positioned as the sole source of the definitive answer for authorship in the days of AI generation.

A proliferation of AI-generated works earning copyright protections under U.S. law could chill speech among creators who face significant monetary damages for infringing works that don’t fit within a traditional fair use defense framework, which amici says is premised upon an author’s implied consent that cannot be attributed to an AI system. The Court’s decision on the issue would prevent needless litigation from percolating as other circuit courts grapple with the same questions in different cases, amici argue.

U.S. Solicitor General

Filing the brief for the federal respondent in late January, the U.S. Solicitor General reframed Thaler’s question presented as: “Whether the court of appeals correctly upheld the Copyright Office’s refusal to register a claim to copyright in an image for which no human author had been identified.” Encouraging the Supreme Court to deny cert to Thaler’s petition, the Solicitor General found multiple provisions within the Copyright Act making the human authorship requirement clear, including those measuring copyright term by the author’s life and the termination right vesting in heirs after the author’s death. This interpretation was further supported by Supreme Court rulings on authorship like Burrow-Giles Lithographic v. Sarony (1884) and the Copyright Office’s own historical guidance on computer-generated works.

In attacking Thaler’s statutory analysis, the Solicitor General argued that while non-human corporations and governments may be considered authors under work for hire doctrine, they are only “considered” the author and are not legally the authors themselves. Further, Thaler’s ownership of the AI model creating the image for registration afforded ownership of the physical copies of the image but not copyright to the image, according to the Solicitor General, who added that Thaler’s ownership argument was deemed forfeited by decisions below.

Like the D.C. Circuit, other circuit courts have repeatedly rejected efforts by copyright applicants to register works created by nonhumans. Photograph copyright cases cited by Thaler were inapposite according to the Solicitor General, none of which involved claims that the camera was the author. Further, claims that the D.C. Circuit’s ruling could harm investment into AI technology overstates the case’s significance, the Solicitor General argued.

Thaler’s Reply Brief

Two weeks after the Solicitor General’s brief, Thaler filed a reply brief highlighting the government’s concession that the human authorship requirement was expressly required by the Copyright Act. Nonbinding policy statements by the Copyright Office do not have the force of law that can support a per se rule against registering AI-generated works, Thaler argued. The petitioner also pointed to other Copyright Act provisions cutting against the human authorship requirement, including language recognizing legal entities with U.S. headquarters as authors in defining a “United States work.”

Thaler contended that Supreme Court precedent does not foreclose copyrightability for AI-generated works, noting that the Court recognized in Sarony that mechanical reproduction does not preclude copyright registration. The petitioner also challenged the Solicitor General’s interpretation of Star Athletica v. Varsity Brands (2017), which with Sarony requires that copyrightability be assessed without analyzing the means used to produce the work. Congressional silence on the human authorship requirement should not be considered agency deference, especially following the Court’s 2024 ruling in Loper Bright Enterprises v. Raimondo. The reply brief also pointed to conflicts between the human authorship requirement and policy favoring copyright registration for AI-generated works in other nations including the United Kingdom and China.

Image Source: Deposit Photos
Image ID: 95637454
Author: KirillM