Companies are rapidly expanding their use of artificial intelligence (AI) to generate business images, digital and online content, videos, website, apps, and software programs. The U.S. Copyright Office is actively examining copyright issues raised by AI, including the scope of copyright protection for AI-generated works and the use of copyrighted materials in AI training.[1] As part of these efforts, the Copyright Office has taken the position that copyright protection does not extend to purely AI-generated material or material where there is insufficient human control over the expressive elements.[2] As a result, that issue has been working its way through the federal court system. In Thaler v. Perlmutter,[3] the U.S. Court of Appeals for the D.C. Circuit ruled that an AI computer system is not a human being and thus could not register a copyright in a work generated by it. On March 2, 2026, the U.S. Supreme Court (“SCOTUS”) declined to hear Thaler v. Perlmutter,[4] leaving the D.C. Circuit’s ruling intact. This article discusses the holding in Thaler v. Perlmutter, what SCOTUS’s decision not to hear the case means, and why these rulings matter to companies utilizing AI.
The Thaler v. Perlmutter Case
In Thaler v. Perlmutter, Dr. Thaler, a computer scientist, created a generative AI software system, which he called the “Creativity Machine.” He used it to generate a picture entitled, “A Recent Entrance to Paradise.” Dr. Thaler submitted a copyright registration application for the picture to the U.S. Copyright Office. On the copyright registration application, he listed the Creativity Machine as the work’s sole author and himself as the work’s owner. The Copyright Office denied the application based on its established human-authorship policy. Dr. Thaler appealed to the Federal District Court, which affirmed the denial.
He then appealed the ruling to the D.C. Circuit. On appeal, Dr. Thaler argued that the human authorship requirement is unconstitutional and unsupported by statute or case law.[5] The D.C. Circuit disagreed. Analyzing the language found in multiple provisions of the Copyright Act, the court found:
As a matter of statutory law, the Copyright Act requires all works to be authored in the first instance by a human being. Dr. Thaler’s copyright registration application listed the Creativity Machine as the work’s sole author, even though the Creativity Machine is not a human being. As a result, the Copyright Office appropriately denied Dr. Thaler’s application.[6]
Given this ruling, the D.C. Circuit did not address whether the Constitution itself requires human authorship of all copyrighted material.[7] Likewise, the court did not address Dr. Thaler’s argument that he was the work’s author by virtue of making and using the Creativity Machine because the court found that he waived that argument when he listed the Creativity Machine as the author in his application.
After losing in the D.C. Circuit, Dr. Thaler filed a petition for writ of certiorari with SCOTUS, asking the high court to hear the case. SCOTUS denied Dr. Thaler’s petition on March 2, 2026. As a result, the D.C. Circuit’s ruling is still good law and is the final, binding decision in that case. Although the holding is not binding in every federal jurisdiction, Thaler v. Perlmutter provides a strong indication of what other federal courts are likely to do under the same circumstances.
It is tempting to read SCOTUS’s denial of certiorari to mean that it agrees with the D.C. Circuit’s ruling, but there is no basis for reaching that conclusion. A denial of certiorari is not a decision on the merits, has no precedential value in future cases, and does not indicate that SCOTUS agrees or disagrees with the D.C. Circuit. SCOTUS receives approximately 5,000-6,000 petitions for writ of certiorari each year, and roughly 97% of those writs are denied.[8]
Why It Matters
In light of the D.C. Circuit’s holding in Thaler v. Perlmutter, individuals, organizations and businesses are on notice that literary, musical, pictorial, graphic, audio, audiovisual, and architectural works, including things like maps, technical drawings, and computer programs, generated solely by AI are not currently eligible for copyright protection given the Copyright Office’s human authorship policy. That means that such work, if made public, can arguably be reproduced and altered, distributed, performed, or displayed by others, and there is no legal mechanism for stopping them from doing so. If, however, AI-generated work is not made public and meets other criteria, it may be eligible for protection as a trade secret. Companies using AI should, therefore, consider consulting an intellectual property (IP) attorney to determine what steps, if any, can be taken to protect work generated solely by AI.
What Next?
Importantly, the Copyright Office has not ruled out copyright protection for works created by humans with the assistance of AI, and this is likely to be taken up by the courts next.[9] Specifically, the Copyright Office has stated:
- The use of AI tools to assist rather than stand in for human creativity does not affect the availability of copyright protection for the output.
- Copyright protects the original expression in a work created by a human author, even if the work also includes AI-generated material.
- Whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analyzed on a case-by-case basis.[10]
Consequently, companies actively using AI should consider consulting with an IP attorney to determine the best ways to highlight human authorship when submitting a copyright registration application with the Copyright Office.
Our Team
Our Intellectual Property Group assists clients with all aspects of patent, trademark, trade secret, and copyright matters.
This article is informational only. The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Information on this website may not constitute the most up-to-date legal or other information. Readers of this website should contact their attorneys to obtain advice with respect to a particular legal matter. No reader, user, or browser of this site should act or refrain from acting based on information on this site without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein—and your interpretation of it—is applicable or appropriate to your particular situation. All liability with respect to actions taken or not taken based on the contents of this site are hereby expressly disclaimed. The content on this posting is provided “as is;” no representations are made that the content is error-free.
[1] https://www.copyright.gov/ai/.
[2] https://www.copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-2-Copyrightability-Report.pdf at iii.
[3] 130 F.4th 1039 (D.C. Cir. 2025).
[4] Thaler v. Perlmutter, ___ S.Ct. ___, 2026 WL 568327, at *1 (March 2, 2026).
[5] See 130 F.4th at 1043.
[6] Id. at 1044-45.
[7] See id. at 1051.
[8] See https://fedsoc.org/commentary/fedsoc-blog/the-supreme-court-s-shrunken-discuss-list.
[9] See, e.g., Allen v. Perlmutter, Civil Action No. 1:24-cv-2665 (D. Colo.) (case concerning whether specific revisions to an AI generated image constitute human authorship). https://www.copyright.gov/ai/docs/us-reply-brief-and-cross-motion-for-summary-judgment.pdf.
[10] https://www.copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-2-Copyrightability-Report.pdf.