Supreme Court leaves in place the rule that a work generated by a machine alone has no author

2026-03-02Supreme Court

Thaler v. Perlmutter, No. 25-449 (U.S. Mar. 2, 2026) (petition for a writ of certiorari denied), leaving in place Thaler v. Perlmutter, No. 23-5233 (D.C. Cir. Mar. 18, 2025) (Millett, J., joined by Wilkins, J., and Rogers, S.J.), rehearing denied May 12, 2025

The Supreme Court denied Stephen Thaler's petition for a writ of certiorari, which asked whether works "outputted by" an artificial intelligence system "without a direct, traditional authorial contribution by a natural person can be copyrighted." The work was a two-dimensional image, "A Recent Entrance to Paradise," which Thaler's registration application attributed to his generative system, the Creativity Machine, and described as "[c]reated autonomously by machine." The Copyright Office refused registration because no human created the work, and the District of Columbia Circuit affirmed on March 18, 2025, holding that the Copyright Act requires a human author. The petition, filed October 9, 2025 with Ryan Abbott as counsel of record, also argued that Thaler owned the output as the system's owner and employer. The government waived a response, the Court requested one, and the Solicitor General's brief in opposition, filed January 23, 2026, argued that the case "does not implicate questions about the nature or extent of the human contribution" needed to register works made with artificial intelligence, because Thaler had disavowed any creative control, and that no court of appeals had reached his result. Amicus briefs were filed by Professors Shlomit Yanisky-Ravid, Lawrence Lessig and others and by Phyllis Schlafly Eagles. The petition was distributed for the conference of February 27, 2026 and denied on March 2, 2026.

What it changesHuman authorship is now as settled for copyright as the natural-person rule has been for inventorship since the Court declined the DABUS patent case in 2023, and the two regimes run in parallel: a machine can be neither author nor inventor, and the open question in both is how much a human must contribute. For a company whose code, documentation, designs or model outputs are increasingly generated by models, copyright will not protect the portions no human authored, so functionality worth protecting has to be claimed in a patent or held as a trade secret. Build one contribution record that serves both regimes: for each asset, which person framed the problem, chose and edited the outputs and made the decisions the claims or the registration rest on. The government's brief expressly set aside works made with the assistance of artificial intelligence, so registrations that disclose and disclaim machine-generated material remain available.