Dr. Thaler Asks SCOTUS to Decide the GAI Authorship Question
First published on The Illusion of More 10/30/25
On October 9th, Dr. Stephen Thaler, a computer scientist and owner of the generative AI “Creativity Machine,” filed a petition for cert with the U.S. Supreme Court, seeking to overturn the DC Circuit opinion in Thaler v. Perlmutter. As discussed in several posts, Dr. Thaler’s machine independently and autonomously produced an image he titled “A Recent Entrance to Paradise” which he then submitted for registration with the U.S. Copyright Office. The Office rejected the application on the basis that protected works must entail human authorship—a rule Dr. Thaler alleges has been invented by the Office and which he claims is unsupported either by statute or the foundational purpose of copyright law. In March, the circuit court ruled in favor of the Copyright Office.
If the Supreme Court agrees to review the case, I hope it will not be distracted by the selection and arrangement of precedent employed in the sleight of hand at work in Thaler’s arguments—all true out of context, all fatal in context. As argued in an earlier post, the Courts should view GAI for the novelty that it is and not be unduly guided by case law addressing technologies that are in no way analogous. In particular, the Court should be wary of petitioners conflating distribution technology (e.g., the VCR) with production technology (e.g., Photoshop) in context to GAI, which, for purposes of the “authorship” question, is solely productive.
In that light, Thaler avers in the petition, “The last watershed moment when technology changed the world of copyright was in 1884, when this Court expanded the definition of ‘writing’ to include photography.” True, but the Burrow-Giles Court affirmed that photography is a mode of expression based on its inference of the human photographer’s creative choices evident in the photograph “Oscar Wilde No. 18.” (See post here.)
By no means did the Court forecast that a robot camera roaming the streets of New York, autonomously capturing photographs, would be the “author” of those images, or that the robot’s owner would necessarily be the “author,” absent evidence of his creative effort in the resulting images. On the contrary, even the 1884 decision, when the Court opined that “ordinary” photographs might not be protected, it prefaced what is today a court’s duty to separate the protectable elements from the unprotectable elements—i.e., identify the human authorship in the machine-made photograph.
Naturally, Dr. Thaler does not claim that “Creativity Machine” is the “author,” but rather that he is the “author” by virtue of his owning the machine and instructing it to make something. This argument relies on an erroneous claim, echoed by others, that copyright law developed as a framework for causing “creative stuff” to exist by any means. This is wrong, and to say otherwise would be to embrace the doctrine of “copyright by adoption” (i.e., literally finding a work and claiming authorship), or it would erode copyright boundaries like the idea/expression dichotomy or “things found in nature.”
For instance, a machine autonomously making a visual work is analogous to nature making beautiful things, none of which may be claimed as works of authorship on their own. Instead, a human must make a work of expression out of things found in nature, and as a rule, the “work of nature” will be excluded from protection. This is settled doctrine, which was also raised in Burrow-Giles, where the defense argued erroneously that for photographer Sarony to claim copyright in the photo at issue, this would be tantamount to granting him a copyright in the person of Oscar Wilde.
Creative Works Are Not Apples
As he did the lower court, Dr. Thaler seeks to force intangible property to conform to the rules of tangible property, as if the purpose of copyright were to grow and harvest works out of computers like fruit from an orchard. The petition states, “There is a longstanding principle in property law, sometimes referred to as accession or the fruit of the tree doctrine, under which a property owner owns property made by their property.” True. And copyright law doesn’t work that way. As discussed in an earlier response to this argument, even if a tree produces a mutant fruit that is uniquely aesthetic as a “sculptural work,” the landowner is not the “author” of that “work” as a matter of law. (He is, however, free to enter it in a county fair contest.)
All people are persons, but not all persons are people.
The petition states, “This Court need look no further than the fact that nonhuman authors such as corporations and other nonhuman ‘persons’ have been authors without controversy for over a century.” Actually, the Court need look no further than the fact that no copyright rights have ever been first vested in non-human “persons.”
Thaler continues to overemphasize the fact that the statute does not explicitly state that “authors” are human beings. The Court should not find this argument persuasive unless the aim is to unravel countless statutes in which natural “persons” are clearly implied without being explicitly distinguished from non-natural “persons.” For instance, if we follow Thaler’s logic arguing that because non-natural “persons” like corporations can be “authors” under copyright’s work made for hire (WMFH) doctrine, does this mean that a CEO who causes a corporation to fail is guilty of homicide?
Clearly, the law is replete with distinctions between natural “persons” and non-natural “persons,” though perhaps contending with AI recommends revising Title I to affirm that “persons” does not include machines. In the meantime, if the Court even hears Thaler, it should reject the semantic game posing as a rule of statutory construction. Of course, the history of copyright law does not address machines independently making “works.” It’s never happened before. And again, the WMFH doctrine affirms the human authorship principle because it requires transfer of rights vested in a human to another party, which may be a non-natural “person.”
Case Law Chaos
If the Court were to adopt Thaler’s overbroad theory of “authorship,” it would erode critical boundaries central to the analysis of a claim of infringement. For instance, with “A Recent Entry to Paradise,” on what basis would a court begin the substantial similarity analysis when some other GAI owner’s machine independently produces an allegedly infringing copy of the work? What testimony will be admissible to describe the original “author’s” expression and to compare and contrast that with testimony describing the “follow-on author’s” expression—to say nothing of a fair use defense for a machine!
As stated in the past, I think such scenarios make chaos out of the principles of “access” and “independent creation” in the analysis. Does GAI B have knowledge of, and access to, GAI A’s “works?” Or do the owners of either GAIs, as putative “authors,” have such knowledge and access based on the datasets inside their respective machines? When facing potential liability, a defendant won’t want to have knowledge of anything, but the absence of a nexus linking man’s creative intent to machine’s production is precisely why the former is not an “author” of the outputs of the latter. The potential (I think inevitable) chaos of litigating such a case would appear to moot the purpose of registering a claim of copyright in the first place.
The Court should recognize that Thaler’s overly expansive view of “authors” would be destructive to copyright law (and perhaps other law), while the Copyright Office has already articulated a more nuanced approach to GAI that recognizes its potential utility as a tool of expression. Even where the Office’s guidance and decisions (e.g., with Kris Kashtanova and Jason Allen) may be awkward in its early encounters with GAI, its affirmation of the human authorship doctrine is not an administrative invention, let alone one “overstepping its authority” into “policymaking,” as Thaler alleges.
Thaler relies substantially on a general principle that is true but, in this case, misleading. Copyright law has always adapted to new technology, but where technology has caused its contours to expand or contract, Congress and the courts have sought to retain core principles—sometimes encompassing new modes of expression, sometimes drawing new limits on the protection of creative expressions. In this regard, the Copyright Office already articulates both an early rationale and administrative process for works made in “collaboration” with GAI, and just as with photography, courts will eventually adjudicate the scope of protection in any of those works that may be infringed.
Instead, Dr. Thaler’s petition, at times written as if all use of GAI is automatically ineligible for protection, begs the Court to overreact and unravel centuries of copyright tradition by finding that no human creator is needed. This is an error as affirmed in the lower court. But for the fact that artificial intelligence is such a hot topic, I would predict the Supreme Court would decline to review this claim.