SCOTUS pressed by Professors to affirm copyright protection for AI-created works

SCOTUS pressed by Professors to affirm copyright protection for AI-created works

The petition warns that if enforced consistently, the Office’s interpretation “would spell the end of copyright protection for many photographs and other works created with technological assistance.”

An amicus brief has been filed by Professors Shlomit Yanisky Ravid, Lawrence Lessig and a number of other professors and researchers with the U.S. Supreme Court in support of Dr. Stephen Thaler’s for artificial intelligence-generated works.

The brief reportedly argues that “excluding AI-generated works from copyright protection threatens the foundations of American creativity, innovation, and economic growth,” and warns that the lower court’s interpretation, requiring human authorship, disregards the “spirit of the Copyright Act.”

After the US Copyright Office refused registration because the work lacked human authorship, Dr. Stephen Thaler has been seeking copyright protection for “A Recent Entrance to Paradise”, a work generated by his AI system, the Creativity Machine.

Thaler’s petition for a writ of certiorari reportedly argues that the Copyright Office has “ambiguously deemed humanity as the sine qua non of copyright, when this Court has explained the only sine qua non is originality.”

The petition warns that if enforced consistently, the Office’s interpretation “would spell the end of copyright protection for many photographs and other works created with technological assistance.”

Thaler also filed a letter requesting that the Court hold consideration of his petition pending the resolution of Blanche versus Perlmutter and Trump versus Slaughter. Blanche versus Perlmutter concerns whether the U.S. Copyright Office Director Shira Perlmutter, a named respondent in Thaler’s case, should continue in her position after her removal by the Trump administration while Trump versus Slaughter focuses on the authority to remove Federal Trade Commission (FTC) Commissioner Rebecca Slaughter, with oral arguments scheduled for December 8.

Reportedly, the case also presents “an opportunity for the Court to restore legal clarity and reaffirm its constitutional authority to interpret ambiguous statutes after Loper Bright (Enterprises versus Raimondo), ensuring that administrative agencies do not restrain creativity through overreach,” per the amicus brief. Moreover, recognizing protection for AI-generated works and authorship, whether through the work-made-for-hire doctrine or comparable frameworks, will align copyright law with its constitutional purpose.

The amicus brief highlighted the economic stakes and cited the U.S. Chamber of Commerce data showing that core copyright industries contributed $3.37 trillion to the U.S. GDP in 2023, employed approximately 21.14 million people, and paid wages about 50% higher than the average American wage.

Similarly, adoption of corporate AI continues to grow, with 78% of global respondents using AI in at least one business function, representing a 23% increase from 2023. The brief said that the broader use of AI improves efficiency in technical development and graphic design by 30 to 40%.

The creative economy could be dramatically reshaped by Generative, with McKinsey estimating its total value in the U.S. to be between $2.6 trillion and $4.4 trillion, and Goldman Sachs projecting a 7% boost to global GDP. Goldman Sachs in September 2025 further noted that AI’s economic impact may have been understated by $115 billion.

As per the amicus brief, the lower court’s interpretation, following the Copyright Office’s “sufficient human authorship” guidelines, promotes legal uncertainty and disincentivizes innovation. Also as per the brief, the guidelines are unworkable, and to date, no U.S. case has granted copyright for AI-generated works despite substantial human contribution. The brief provides an example of Allen versus Perlmutter where over 600 prompts demonstrating creative control were deemed insufficient, and in Thaler’s own case, in which his design and training of the AI system were also found to be inadequate.

Excluding AI-generated works from copyright protection could disproportionately impact individual creators and small businesses, thereby worsening inequality, the amicus brief highlighted. AI adoption has helped many small businesses better productivity in areas such as data analysis and marketing. Equity for artists with disabilities could also be nurtured by copyright protection by providing tools that enable creative expression and monetization. The brief gives the example of Sean Aaberg, an image designer who continued his career using generative AI after suffering a stroke.

As noted by the amicus brief, the Supreme Court’s history of adapting copyright law to new technologies is demonstrated by Burrow-Giles Lithographic Co. versus Sarony, ,5 in which the Court extended copyright protection to photographs, recognizing the photographer’s intellectual conception, even though a machine captured the image.

In a similar vein, the Court expanded protection to chromolithographs in Bleistein versus Donaldson Lithographic Co. and in Google LLC versus Oracle America, Inc. as it adapted the fair use doctrine to allow limited copying of software code to promote innovation. The brief argued that just as “this Court has consistently broadened interpretation to embrace new technologies safeguarding artistic advancement” with photography and software, the Court should once again do so for AI-generated works.

The amicus brief has a comparative overview which notes that the United States is falling behind other jurisdictions that have already begun to recognize and protect AI-generated works. The US risks losing investment and creative talent to countries that offer more legal certainty without a clear path to copyright protection, the brief cautioned.

Yanisky-Ravid, Lessig, and their co-authors are urging the Supreme Court to grant certiorari and clarify that AI-generated works can receive copyright protection. The amicus brief contended that the Court’s decision will determine whether the U.S. maintains its leadership in AI-driven creative industries or yields ground to jurisdictions that provide clearer protections.