Ahead of a review by the Court, companies creating works relying at least in part on generative AI should continue to ensure identifiable human authorship and disclose both the AI-generated aspects and human-generated aspects in copyright filings.
Following a refusal to grant a copyright registration to Stephen Thaler for a work whose sole author was identified as "Creativity Machine," a generative AI Thaler created, the D.C. Circuit affirmed that works authored exclusively by artificial intelligence are ineligible for copyright protection under the Copyright Act, which the court read to require human authorship, in keeping with the Copyright Office interpretation and prior case law. A petition for certiorari and a supporting amicus brief now ask the U.S. Supreme Court to take up the question of whether the Copyright Act requires human authorship, arguing that the statute's text, structure and purpose do not categorically impose such a requirement and that existing doctrines leave room for AI to be recognized as the author of protected works. The petition argues that this is an inflection point for AI and the Supreme Court needs to resolve the issue. Ahead of a review by the Court, companies creating works relying at least in part on generative AI should continue to ensure identifiable human authorship and disclose both the AI-generated aspects and human-generated aspects in copyright filings.
The Decision Below: Human Authorship Required
In the leading test case brought by Thaler, Thaler v. Perlmutter, 130 F.4th 1039 (D.C. Cir. 2025), the D.C. Circuit held that a work "authored" solely by a machine (i.e., with no human creative contribution) does not qualify for protection because the Copyright Act requires an author to be human. While this requirement is not explicit, the court read statutory provisions regarding the term of copyright ("life plus 70"), inheritance, signatures for transfers and joint authorship based on "intent" as context signaling that "authors" were expected to be human, while "machines" are treated throughout the Copyright Act as tools, not authors. The court also noted that questions over how to adapt copyright for AI are best left for Congress and the Copyright Office to resolve.
The panel expressly did not reach arguments that Thaler could be treated as the author of a fully AI-generated output via the AI platform he created, treating it as waived because Thaler listed Creative Machine as the author on the application. The court also found that any constitutional questions had been waived on the administrative record. The D.C. Circuit Court also noted that its ruling does not preclude protection for works created "by or with the assistance of" AI where a human's creative choices determine the expressive outcome, which reflects the Copyright Office's current position.
The Petition and Amicus Brief: Copyright Act and Policy Support Protection
The certiorari petition contends that the Copyright Act protects "original works of authorship" without any textual requirement that the author be a human. It argues that the Act already contemplates nonhuman authorship in work-made-for-hire settings (where an employer is "considered the author") and that long-settled precedent rejects policing "methods of creation.
The petition raises similar arguments as those that were advanced by PETA and rejected in Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018). In that case, the Ninth Circuit affirmed a decision finding that a black macaque monkey could not be an "author" of a selfie under the Copyright Act and lacked statutory standing to sue.
In addition to advancing similar textual arguments, amici urge the Supreme Court to grant review, citing economic and innovation impacts, the chilling effect of categorical exclusion and comparative developments abroad that either recognize or are actively evolving to fully protect AI-generated outputs. They contend that uncertainty and the Copyright Office's current guidance impose unworkable and inconsistently applied thresholds for "sufficient human authorship," deterring investment and disadvantaging small businesses and creators (including those with disabilities) who rely on AI tools.
Copyright Office Position
The Copyright Office's guidance maintains that registration turns on the extent of human creative control over the final expressive elements. Works with identifiable human authorship, such as selection, arrangement, editing and other creative determinations that shape the final output, remain eligible, subject to disclosure of the AI-generated portions. Works created wholly and autonomously by an AI system are refused registration.
The Copyright Office has also issued policy reports on AI and is studying additional legislation while recommending against changing the human-authorship rule for purely AI-generated works. Congress likewise continues to assess comprehensive AI-related IP policy, leaving the current regime intact for now.
Why This Matters
For any business investing in generative AI to produce content, designs, code, marketing assets, audiovisual works or other expressive outputs, the following should be kept in mind:
- Without copyright protection, purely AI-generated content falls into the public domain on creation, enabling unrestricted copying and undermining monetization and effective enforcement.
- Disputes will increasingly turn on the sufficiency and documentation of human contributions to the final expression that would enable a copyright grant under the Copyright Office's current practice. Creative prompting, iterative curation, nontrivial editing, compositing and targeted stylistic direction may qualify a work for protection.
- Failure to disclose or accurately characterize AI contributions in a copyright application risks refusal or later vulnerability of the registration.
- Regardless of Supreme Court action, scrutiny of "how much" and "what kind" of human input suffices for copyright protection is likely to intensify.
Practical Steps to Take Now
Organizations should tighten governance and workflows to maximize protectability and reduce uncertainty by:
- Implementing protocols that ensure and document human creative control over expressive elements that appear in the final work.
- Ensuring human choices determine final composition, selection, arrangement, sequencing, narrative and stylistic elements when using AI tools.
- Standardizing copyright registration practices to identify human authorship while disclosing AI-generated portions.
- In vendor, freelancer and collaboration agreements, defining acceptable AI use, requiring disclosures, assigning IP in human contributions and addressing warranties/indemnities tied to AI inputs and outputs.
- Considering whether other relevant jurisdictions allow for ownership of computer-generated works.
For More Information
If you have any questions about this Alert, please contact Mark Lerner, any of the attorneys in our Intellectual Property Practice Group, any of the attorneys in our Artificial Intelligence Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.
