Thaler’s latest attempt to register copyright to AI-generated image denied by Supreme Court
Thaler’s latest attempt to register copyright to AI-generated image denied by Supreme Court
As per the amicus brief of Phyllis Schlafly Eagles and Eagle Forum ELDF, “continued silence by the court on this issue is no longer helpful”
The U.S. Supreme Court has issued an order list including denial of a petition for writ of certiorari filed by Dr. Stephen Thaler that challenged federal agency and court rulings preventing copyright registration for an image generated entirely by artificial intelligence (AI). The Supreme Court, in following the U.S. Solicitor General’s call to deny cert to Thaler’s appeal, declined invitations from both sides of the AI authorship debate to clarify the copyrightability of works that are substantially AI-generated. Thaler filed his petition early last October, challenging the Court of Appeals for the D.C. Circuit’s ruling affirming that human authorship as governed by the Copyright Act of 1976 requires human authorship in the first instance. Nearly a month later, an amicus brief filed by a collection of university professors urged the Supreme Court to grant Thaler’s petition and rule against the D.C. Circuit to support continued development of nascent AI technology and prevent inequalities that could negatively impact independent creators using AI tools to create original works.
The amicus brief - filed on November 12 by conservative advocacy organizations Phyllis Schlafly Eagles and Eagle Forum Education & Legal Defense Fund (ELDF) – asked the Supreme Court to take up Thaler’s petition and confirm that AI-created works are not eligible for copyright under U.S. law. The Supreme Court has not issued any substantial ruling on AI despite the technology’s proliferation across financial markets and political discourse, as their amicus brief notes. Amici wrote, “Continued silence by the Court on this issue is no longer helpful.” The D.C. Circuit did not directly address the copyrightability of AI-generated works but its ruling in Thaler left the door open to Congress removing the human authorship requirement if it “stym[ies] the creation of original work.” The U.S. Solicitor General, filing the brief for the federal respondent in late January, reframed Thaler’s question presented as: “Whether the court of appeals correctly upheld the Copyright Office’s refusal to register a claim to copyright in an image for which no human author had been identified.” The Solicitor General, encouraging the Supreme Court to refuse cert to Thaler’s petition, found multiple provisions within the Copyright Act making the human authorship requirement clear, including those measuring copyright term by the author’s life and the termination right vesting in heirs after the author’s death. Supreme Court rulings on authorship like Burrow-Giles Lithographic v. Sarony (1884) and the Copyright Office’s own historical guidance on computer-generated works further supported this interpretation. The Solicitor General in attacking Thaler’s statutory analysis argued that while non-human corporations and governments may be considered authors under work for hire doctrine, they are only “considered” the author and are not legally the authors themselves. Further according to the Solicitor General, Thaler’s ownership of the AI model creating the image for registration afforded ownership of the physical copies of the image but not copyright to the image. The Solicitor General added that Thaler’s ownership argument was deemed forfeited by decisions below.
Thaler filed a reply brief two weeks after the Solicitor General’s brief highlighting the government’s concession that the human authorship requirement was expressly required by the Copyright Act. Thaler argued that the Copyright Office’s nonbinding statements do not have the force of law that can support a per se rule against registering AI-generated works. The petitioner also pointed to other Copyright Act provisions cutting against the human authorship requirement, including language recognizing legal entities with U.S. headquarters as authors in defining a “United States work.”
