Supreme Court Denies Cert In AI Authorship Case – Updated With Comments From Dr. Thaler

In a closely watched case regarding copyright protection for AI-created works, on March 2, 2026, the Supreme Court of the United States declined to grant review in Thaler v. Perlmutter (Case No. 25-449). In denying certiorari, the Court leaves standing, and unaddressed by the Supreme Court, the 2025 DC Circuit opinion, which affirmed the US Copyright Office ("USCO") requirement of human authorship in order to be eligible for copyright protection.¹

This case involves a piece of visual art, "A Recent Entrance to Paradise," created entirely through the use of an AI system developed by Dr. Stephen Thaler, a computer scientist. In a conversation with the authors, Dr. Thaler noted that he neither prompted the AI system nor did any further edits or alterations to the final AI-generated image. In Thaler's copyright application, he listed his AI system as the sole author, and at no point did he claim the image contained any human authorship.

The USCO's January 2025 report on copyrightability of works created with AI (further discussed in our Legal Update), which referenced the Thaler case throughout, clarified the Office's position that prompts alone are insufficient to afford a work copyright protection, concluding that "[p]rompts essentially function as instructions that convey unprotectable ideas," and that currently available technologies do not offer enough control and predictability in outputs.² The report recognized the role of the courts in "provid[ing] further guidance on the human authorship requirement as it applies to specific uses of AI (including in reviewing the USCO's registration decisions)."³

The decision in Thaler v. Perlmutter also is consistent with decisions outside of the AI context that have reinforced the requirement for human authorship. In Naruto v. Slater, the "monkey selfie" case in which PETA attempted to obtain copyright ownership for photographs taken by a monkey, the Ninth Circuit affirmed the need for human authorship, finding that animals cannot be copyright holders.⁴ This decision was also referenced in the USCO's January 2025 report.⁵

Recent regulatory guidance and court decisions in patent law regarding AI and inventorship have also consistently affirmed the need for human contribution, and Thaler has positioned himself at the center of the court decisions testing that requirement in this space, as well. For example, in Thaler v. Vidal, a case involving patent applications filed by Thaler which listed his AI system as the sole inventor, the Federal Circuit affirmed in 2022 that AI systems are not natural persons and thus cannot be listed as inventors on patents.⁶ The United States Patent and Trademark Office ("USPTO") issued revised guidance in November 2025, which confirmed the USPTO's position that AI cannot be named as an inventor while clarifying that human inventors may use AI tools in their inventive process.⁷

Neither the USCO, the USPTO, nor the court system has provided bright-line guidance on just how much human contribution is required for copyright or patent protection. Additional pending cases, such as Allen v. Perlmutter, in which the plaintiff has challenged the USCO's refusal to register a work generated with more than 600 prompts directed at refining the AI-generated image,⁸ may still serve to establish clearer guidance on where that line may fall. In the interim, best practices for ensuring copyrightability include careful documentation of human contribution to any works created with the assistance of AI.

Footnotes

1 Thaler v. Perlmutter, 130 F.4th 1039 (D.C. Cir. 2025).

2 Copyright and Artificial Intelligence, Part 2: Copyrightability, at 18.

3 Id. at 40.

4 Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018).

5 Copyright and Artificial Intelligence, Part 2: Copyrightability, at 7-8.

6 Thaler v. Vidal, 43 F.4th 2017 (Fed. Cir. 2022).

7 Revised Inventorship Guidance for AI-Assisted Inventions, Docket No. PTO-P-2025-0014.

8 Allen v. Perlmutter, No. 1:24-cv-2665 (D. Colo. Sept. 26, 2024).

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