US Supreme Court Declines to Consider Whether AI Alone Can Create Copyrighted Works

The US Supreme Court has declined to consider the copyrightability of artwork generated purely autonomously by artificial intelligence, leaving in place the “human authorship requirement” for copyright protection. In this LawFlash, we break down the case, the statutory and judicial frameworks governing copyright in autonomously created works, the Copyright Office’s stance, and the practical implications for companies navigating copyright in the age of autonomous AI creation.

KEY TAKEAWAYS

• The Supreme Court[1] declined to review the first major case challenging the “human authorship requirement” for AI-generated works.
• The US Copyright Office and federal courts require human authorship for copyright protection; works created solely by AI are not eligible for registration under the current rules.
• Businesses leveraging AI for creative output will only be able to protect copyright in AI works created with sufficient human involvement in the direction, prompting, or alteration of the resulting work.
• The Court may still consider the copyrightability of AI works in the future.

BACKGROUND

Dr. Stephen Thaler, a computer scientist, developed the “Creativity Machine,” an artificial intelligence system capable of autonomously generating creative works. Thaler submitted an application to the US Copyright Office to register copyright in “A Recent Entrance to Paradise,” explicitly identifying the AI system as the author and stating the work was created without human intervention.

The Copyright Office denied registration,[2] finding that it lacked sufficient “human authorship”—a requirement rooted in longstanding policy rather than in the explicit language of the Constitution[3] or the Copyright Act.[4]

Thaler challenged this requirement, arguing that the AI’s owner or programmer should own copyright in works created autonomously by artificial intelligence. The District Court and the DC Circuit affirmed the Office’s decision, with the courts holding that US copyright law “protects only works of human creation”[5] and the Copyright Act “requires all eligible work to be authored in the first instance by a human being.”[6]

Subsequent petitions for rehearing were denied, leading Thaler to seek Supreme Court review. Thaler’s petition for certiorari[7] asked the Court to consider whether “works outputted by an AI system without a direct, traditional authorial contribution by a natural person can be copyrighted.”

The Supreme Court denied certiorari on March 2, 2026, leaving in place the Copyright Office and DC Circuit’s refusal to register works created purely by AI. However, the Court denial of certiorari in the case would not prevent the Court from considering the human authorship requirement in future cases.

LEGAL FRAMEWORK

The Copyright Act grants copyright in “original works of authorship fixed in any tangible medium of expression” and vests copyright initially in the “author or authors of the work.” The Copyright Office points to statutory provisions regarding copyright duration, transfer, and inheritance—all of which presuppose a human author able to sign legal instruments and whose life and death determine copyright terms—to decline registration of works created autonomously by AI.

Copyright Office policy guidance, the Compendium of U.S. Copyright Office Practices, explicitly states that “the Office will refuse to register a claim if it determines that a human being did not create the work” and provides examples of noncopyrightable works, such as those “produced by nature, animals, or plants” or “by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”[8]

In support of this policy, the Copyright Office cites Burrow-Giles Lithographic Co. v. Sarony, which held that photographs could be protected by copyright even though they are captured by nonhuman mechanical devices. In that case, the Court focused on the photographer’s control over the lighting, arrangement, and disposition of the photograph, suggesting that human selection and arrangement is required for copyright to vest.[9]

Here, the artwork was autonomously produced by AI with no human creative contribution, causing the Copyright Office to refuse registration. On judicial review, courts affirmed the Office’s position, holding that copyright is strictly for human-created works.

STATUTORY INTERPRETATION AND AGENCY PRACTICE

Thaler contended that neither the Constitution nor the Copyright Act expressly require human authorship.[10] He argued that the Office’s human authorship requirement is grounded in agency guidance, not in statutory text, and that nonhumans—specifically corporations—have been considered authors of copyrighted works “without controversy for over a century.” Thaler asserted that while the Copyright Act contains explicit prohibitions regarding copyrightable subject matter, it does not restrict authorship to natural persons.

The Copyright Office countered that longstanding legislative history, agency practice, and judicial precedent consistently require human authorship.[11] The Office distinguished between AI as a creative tool assisting humans and AI as a stand-in for human creativity, emphasizing that copyright protection is only available where a human exercises ultimate creative control. According to the Office, “hundreds” of works incorporating AI have been registered when a human author is present and exercises creative input.

LOOKING AHEAD

For now, businesses and creators using AI should continue to rely on the longstanding human authorship requirement. Under current law, works made solely by autonomous AI are not eligible for copyright protection in the United States. Ongoing cases also consider the amount of human input, including prompting or post-generation editing, required to register copyright in an AI-generated work.[12]

Companies should ensure a human contributes creatively and is named as the author in any copyright applications for AI-assisted works. To maximize protection, organizations should review their creative workflows and document human involvement in AI-assisted projects, particularly for commercial content. Organizations should continue to document the timing and scope of the use of AI in copyrightable works, for example by retaining prompts provided by the author. Internal policies should clarify attribution, ownership, the nature of creative input, and documentation requirements to avoid denied copyright applications.

HOW WE CAN HELP

Our team of adept IP lawyers can review employee contracts and internal policies regarding intellectual property rights and the use of AI to generate copyrightable works. The team closely tracks the latest court decisions and administrative guidance on copyright in AI works, including the human authorship requirement, and stands ready to help organizations avoid pitfalls in registration and enforcement that may result from use of AI. We can assess litigation exposure and strategic positioning under your organization’s current policies, allowing your organization to minimize risk.