Is AI-Generated Work Copyrightable? A Case Study of Thaler v. Perlmutter

Is AI-Generated Work Copyrightable? A Case Study of Thaler v. Perlmutter

2026/06/15

The rapid proliferation of artificial intelligence (AI) systems capable of producing high-quality visual art, music, and literature has challenged the foundational paradigms of intellectual property law. A critical question has emerged: Can an AI system be recognized as an ‘author’ under existing copyright frameworks? In March 2026, the U.S. Supreme Court denied the petition for certiorari filed by Dr. Stephen Thaler, leaving undisturbed the D.C. Circuit’s holding, where human authorship was reaffirmed as required for any work to receive protection under the U.S. Copyright Act.

The Factual Background

The legal controversy in Thaler v. Perlmutter began when Dr. Stephen Thaler failed to register a copyright for a visual artwork titled ‘A Recent Entrance to Paradise’. In the application to the U.S. Copyright Office (USCO), Dr. Thaler disclosed that the work had been autonomously generated by an AI system known as the ‘Creativity Machine[1].’ Instead of claiming human creation, Thaler sought to register himself as the copyright owner under the ‘work-made-for-hire’ doctrine, arguing that the AI functioned as an employee and that he should have ownership as the machine’s owner[2].

However, the USCO, citing the U.S. Supreme Court’s decision in Burrow-Giles Lithographic Co. v. Sarony (1884), declined Dr. Thaler’s application on the grounds that a human being did not create the work[3]. Dr. Thaler then twice requested that the USCO reconsider its decision, asserting that the requirement of human authorship was inconsistent with both statutory and case law[4]. Nevertheless, the USCO Review Board affirmed the initial refusal, emphasizing that federal copyright law does not protect works produced by non-human creators, machines, or autonomous algorithms without human intervention[5].

Procedural Journey to the Federal Court

1. The rejection by the District Court and the D.C. Circuit

Following the final administrative denial by USCO, Dr. Thaler sought review in the U.S. District Court for the District of Columbia. The district court granted summary judgment in favor of the USCO. First, the district court affirmed that the USCO’s denial of Dr. Thaler’s application, stating that human authorship is a foundational requirement for copyright, a principle consistently supported by both statute and case law[6]. Second, the district court held that the work-made-for-hire doctrine did not apply because no eligible copyright existed to transfer to Thaler in the first place, even if he were the Creativity Machine’s owner[7]. Finally, the district court ruled that Dr. Thaler had waived his argument that he should own the copyright based on his creation and use of the Creativity Machine[8].

Dissatisfied with the district court’s ruling, Dr. Thaler appealed the decision to the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit). On March 18, 2025, the appellate court affirmed the summary judgment in favor of the USCO[9]. The D.C. Circuit analyzed the statutory framework of the Copyright Act, which defines authors as human and ‘machines’ as tools[10]. The Court reasoned that applying the following numerous provisions makes the statute textually incoherent if applied to non-human entities. For example[11]:

(1) Property ownership: Copyright ownership is fundamentally based on the author’s legal capacity to hold property, and machines cannot own property.

(2) Copyright Duration: The duration of protection is strictly limited to the author’s lifespan (70 years after the author’s death) or to a period approximating how long a human might live (95 or 120 years). However, machines do not have life spans.

(3) Termination and Inheritance: The termination interest of the deceased author’s copyright is descendible and belongs to surviving family members, but machines do not have heirs.

(4) Transfer Requirements: Valid copyright transfers require a signature by the owner, which machines cannot provide.

(5) Nationality and Domicile: Unpublished works are protected under federal law regardless of the author’s nationality or domicile, but machines do not have domicile or national identity.

(6) Joint Authorship and Intent: A joint work requires a mutual intention among two or more authors to merge their contributions into a unitary whole, and machines lack a mind and do not have intention.

(7) Machine as a Tool: Every time the Copyright Act discusses machines, the context consistently indicates that machines are not authors but tools.

The D.C. Circuit illustrated this structural incoherence by holding that, while none of the above individual provisions alone is a necessary condition for authorship, the statutory text, taken as a whole, is best read as making humanity an indispensable requirement[12]. Consequently, the court ruled that the current text of the Copyright Act is best read as making humanity a necessary condition of authorship[13].

Furthermore, the D.C. Circuit rejected Dr. Thaler’s arguments under the work-made-for-hire doctrine, ruling that regardless of employment status, an ‘original work of authorship’ must be created in the first instance by a human being to have copyright protection in the first place[14].

2. The Declination by the Supreme Court

After being rejected by the D.C. Circuit, Dr. Thaler then filed a petition for a writ of certiorari with the Supreme Court of the United States[15]. He contended that the USCO’s human authorship requirement is not derived from case law or statute. The authorship requirement is “agency-made” and not supported by the Copyright Act or the Constitution[16]. He also argued that under common law property principles, a property owner owns the derivatives generated by the property. Since he created and owns the AI system, he should legally own its outputs as an inseparable addition to his property[17]. In addition, he asserted that the exclusion of AI-generated works creates a severe chilling effect on commercial investments within the AI sector, conflicting with the constitutional purpose of promoting scientific progress[18].

In response, the U.S. Department of Justice (DOJ) filed a brief opposing the petition and urging the Supreme Court to deny certiorari[19]. The DOJ agreed with the lower courts’ rulings, arguing that the text and structure of the Copyright Act inherently presuppose a human author. The government emphasized that the issue presented in this case is narrow: whether an AI system may itself be treated as the ‘author’ of a copyrightable work, rather than whether works created with the assistance of AI are eligible for copyright protection[20]. Because Dr. Thaler consistently maintained that the image was created autonomously by the Creativity Machine without any human creative contribution, the ruling below did not address the broader question of copyright protection for works created by human authors using AI tools[21].

Ultimately, on March 2, 2026, the Supreme Court issued a summary order denying Dr. Thaler’s petition without providing further comment[22].

Analysis and Conclusion

After a long-term legal marathon, the United States Supreme Court’s denial of certiorari in Thaler v. Perlmutter reinforced the prevailing interpretation that U.S. copyright law requires human authorship[23]. The fundamental purpose of copyright law is to protect and incentivize human intellectual creativity. Not only does the Copyright Act address that a human is required for authorship, but the USCO’s report Copyright and Artificial Intelligence Part2: Copyrightability[24] also emphasizes that human creative contribution is necessary for a work to qualify for copyright protection[25]. Accordingly, rather than directly replacing human authorship, AI systems should be viewed as a technological tool that assists or enhances the expression of human ideas, and works created with AI assistance may still qualify for copyright protection.

However, while the Thaler case confirms, at least under the current interpretation of the U.S. Copyright Act, that copyright authorship is limited to human creators, it does not provide a definitive answer regarding the degree of human involvement required in AI-assisted works. This issue remains unsettled in both statutory law and judicial precedent[26]. Future legislative, administrative, and judicial developments will therefore play an important role in clarifying the boundary between human authorship and AI-generated expression, and in shaping the future of copyright protection for AI-assisted creations.

[1] Thaler v. Perlmutter, No. 23-5233, at 6 (D.C. Cir. Mar. 18, 2025), available at https://cases.justia.com/federal/appellate-courts/cadc/23-5233/23-5233-2025-03-18.pdf?ts=1742313701 (last visited 2026/06/10)

[2] Id at 7.

[3] Id. at 6.

[4] Id.

[5] Id.

[6] Id. at 8.

[7] Id.

[8] Id.

[9] Thaler v. Perlmutter, No. 23-5233, (D.C. Cir. Mar. 18, 2025).

[10] Id. at 9-10.

[11] Id. at10-13.

[12] Id. at 13.

[13] Id. at 13.

[14] Id. at 23.

[15] Petition for a Writ of Certiorari, Thaler v. Perlmutter, No. 25-449 (U.S. Oct. 9, 2025), available at 20251009132618528_Thaler v Perlmutter - Petition.pdf (last visited 2026/06/10)

[16] Id. at 11-15.

[17] Id. at 21-24.

[18] Id. at 25.

[19] Brief for the Respondents in Opposition, Thaler v. Perlmutter, No. 25-449 (U.S. Jan. 2026), available at https://www.supremecourt.gov/DocketPDF/25/25-449/392672/20260123191420573_25-449ThalerOpp.pdf (last visited 2026/06/10)

[20] Id. at 17.

[21] Id. at 17-18.

[22] Thaler v. Perlmutter, No. 25-449, cert. denied (U.S. Mar. 2, 2026), available at https://www.supremecourt.gov/docket/docketfiles/html/public/25-449.html (last visited 2026/06/10).

[23] Finnegan, Supreme Court Declines to Hear Thaler v. Perlmutter, Leaving Human Authorship Requirement Intact, (March 5, 2026), https://www.finnegan.com/en/insights/ip-updates/supreme-court-declines-to-hear-thaler-v-perlmutter-leaving -human-authorship-requirement-intact.html#:~:text=On%20March%202%2C%202026% 2C%20the%20U.S.
%20Supreme%20Court,be%20considered%20an%20%E2%80%9Cauthor%E2%80%9D%20under%20U.S.%20copyright%20law. (last visited Jun 10, 2026)

[24] U.S. Copyright Office Copyright and Artificial Intelligence, Part 2: Copyrightability, https://www.copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-2-Copyrightability-Report.pdf. (last visited 2026/6/10).

[25] Id at 41.

[26] Sterne Kessler, IP Hot Topic: Cert. Denied, But One Thing is Certain: The Human Authorship Requirement for Copyright, (March 9, 2026), https://www.sternekessler.com/news-insights/client-alerts/ip-hot-topic-cert-denied-but-one-thing-is-cert-ain-the-human-authorship-requirement-for-copyright/ (last visited Jun 10, 2026)