by Dennis Crouch
Computer scientist Dr. Stephen Thaler has petitioned the Supreme Court to resolve whether artificial intelligence systems can generate copyrightable works without traditional human authorship. In Thaler v. Perlmutter, No. 25-___ (petition filed Oct. 9, 2025), Thaler seeks review of the D.C. Circuit’s March 2025 decision affirming the Copyright Office’s denial of registration for a visual artwork titled “A Recent Entrance to Paradise,” which was autonomously created by Thaler’s AI system known as the “Creativity Machine.” Thaler v. Perlmutter, 130 F.4th 1039 (D.C. Cir. 2025). The petition asks:
Whether works outputted by an AI system without a direct, traditional authorial contribution by a natural person can be copyrighted.
This is a test case set up by Thaler and his attorney, Professor Ryan Abbott. In his his 2018 copyright application, Thaler transparently listed the Creativity Machine as the work’s sole author and himself (Dr. Thaler) merely as the copyright claimant by virtue of owning the AI system. The Copyright Office denied registration on the grounds that copyright law requires works to be created by human beings, citing the Supreme Court’s 1884 decision in Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884), and the agency’s longstanding Compendium provisions requiring human authorship. After exhausting administrative appeals, Thaler challenged the denial under the Administrative Procedure Act, but both the district court and D.C. Circuit affirmed, reading the Copyright Act of 1976 as implicitly mandating human creators. Of course, nothing in the statute explicitly requires a human author, and the Copyright Act affirmatively permits a non-human “person” to be “considered the author” in the work made for hire situation.
Thaler’s central statutory argument hits upon these issues — attacking the Copyright Office’s position as atextual, which only requires creation of “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102(a). The petition characterizes the Copyright Office’s human authorship requirement as an a policy choice imposed without congressional authorization.
The D.C. Circuit, however, found a human authorship requirement implicit throughout the Copyright Act’s structure. A key example involves ownership. The court noted that Section 201(a) vests copyright ownership in the “author,” yet only legal persons can hold property rights. Section 302(a) ties copyright duration to the author’s life (life plus seventy years), creating incoherent scenarios if applied to machines with no human lifespan. Etc.
But Thaler argues that AI system could be analogized to an employee whose output belongs to the employer (Thaler) under 17 U.S.C. § 201(b). As I noted above, corporations and other non-human entities are regularly “considered the author” under work-for-hire principles. If the law already recognizes this legal fiction for non-human employers, Thaler argues, courts could extend similar treatment to AI-generated works by deeming the AI’s human owner/operator as the work’s legal author.
The statutory argument here is at least credible. Section 201(b) defines the scope of work made for hire and includes both employers and “other person[s] for whom the work was prepared.” In those situations, the work is considered authored by the respondeat superior. When Thaler programs, owns, and operates an AI system to generate a specific work at his direction and expense, the work is functionally “prepared for” him in the same sense that an architect’s plans are prepared for a commissioning client or a programmer’s code is prepared for a hiring firm. The law is designed to provide rights to the organizing party by naming that party as the author even though another entity performed the creative execution.
The courts below rejected this argument decisively. The D.C. Circuit emphasized that the work-for-hire provision’s careful use of the phrase “considered the author” (rather than “is the author”) reflects that Congress was creating a legal fiction—one that presupposes an underlying human creator whose rights are being transferred. But, the force of this arguments is in cross tension with holdings discussed above about the statute repeatedly implying that the author for copyright purposes must be a human.
Thaler also argues an alternative second theory that draws from property law’s doctrine of accession. This is the principle that a property owner owns the natural products or fruits of their property. Just as the owner of livestock owns the offspring (the calf belongs to whoever owns the cow), Thaler argues that AI-generated works should belong to the owner of the AI system as “property created by property.” (Here some thorny problems are avoided because Thaler is the owner and user of the system). The petition invokes ancient common law principles, noting that accession has applied to everything from crops to alluvial land formations to interest on financial principal. Under this theory, copyright ownership would vest in Thaler not because he is the “author” but because the work is an increment or product of his property (the AI system he created and owns).
This accession argument is novel in copyright law, which has traditionally been author-centric rather than property-centric – at least at the rights-creation stage. The Copyright Act explicitly vests initial ownership in “the author” which severely undercuts this argument.
For me, the bigger and more urgent question is not about AI working entirely alone, but rather how much human originality must be present for a work to qualify as copyrightable, and must the human’s contribution appear in both the conception and the execution of the work? I like how Jane Ginsburg and Luke Budiardjo conceptualize this in their 2019 article — arguing that both must be traceable to a human “master mind” for a work to be considered authored. See Jane C. Ginsburg & Luke A. Budiardjo, Authors and Machines, 34 Berkeley Tech. L.J. 343 (2019).
I expect the Court will deny certiorari, but the proliferation of AI-assisted creative works continues as will these underlying legal questions.