No. 25-449
`
`IN THE
`
`Supreme Court of the United States
`
`STEPHEN THALER,
`Petitioner,
`.
`SHIRA PERLMUTTER, REGISTER OF COPYRIGHTS
`AND DIRECTOR OF THE UNITED STATES
`COPYRIGHT OFFICE, et al.,
`
`Respondents.
`
`ON PETITION FOR A WRIT OF CERTIORARI TO THE
`UNITED STATES COURT OF APPEALS FOR THE D.C. CIrcUIT
`
`REPLY BRIEF IN SUPPORT OF
`PETITION FOR A WRIT OF CERTIORARI
`
`RyaN ABBOTT
`
`Counsel of Record
`BrowN, NERI, SMITH & KHAN, LLP
`11601 Wilshire Boulevard,
`
`Suite 2080
`Los Angeles, CA 90025
`(310) 593-9890
`ryan@bnsklaw.com
`
`Counsel for Petitioner
`
`389906 g
`
`COUNSEL PRESS
`(800) 274-3321 * (800) 359-6859
`
`
`
`
`
`
`
`
`1
`
`TABLE OF CONTENTS
`
`Page
`TABLE OF CONTENTS. ... ..., i
`TABLE OF CITED AUTHORITIES .............. ii
`INTRODUCTION. ... 1
`ARGUMENT. . ... e 2
`
`I. The Copyright Office Erroneously Imported
`
`a Non-statutory Requirement to Create a
`
`Rule Against Granting Copyright for Works
`Created Using Computer Software ........... 2
`
`A. The Copyright Act Directly Contravenes
`the Human Authorship Requirement. . . ... 4
`
`B. This Court’s Precedent Allows for
`Protection of AI-Generated Works. ....... 6
`
`C. Congress Has Not Acquiesced to the
`Human Authorship Requirement.......... 7
`
`II. This Case Presents an Ideal Vehicle
`
`to Resolve an Issue of Paramount
`Importance..............cciiiiiiiiin... 8
`
`III. CONCLUSION .......ooiiiiiiiit.. 13
`
`
`
`
`
`
`
`
`1"
`
`TABLE OF CITED AUTHORITIES
`
`Page
`
`Cases
`Burrow-Giles Lithographic Co. v. Sarony,
`
`TI1US. 53 (1884) . o e e e e i e eiiee s 6
`Community for Creative Non-Violence v. Reid,
`
`490 U.S. 730 (1989). . oo vvee et eeen 7
`Feist Publications, Inc. v.
`
`Rural Telephone Service Co., Inc.,
`
`499 U.S.340(1991) . ..o e e e 6
`Loper Bright Enterprises v. Raimondo,
`
`603 U.S.369 (2024). . ... ovvieee i 8
`Star Athletica, L.L.C. v. Varsity Brands, Inc.,
`
`580 U.S. 405 (2017). .o v ee et 6,7
`Statutes
`1TUSC.§101 .. 5,7
`1TUS.C.§201(0) v e et et e iee e 4
`17TUS.C.§203@)R2)A) . et 4
`17TUS.C.8302(0) . oo veee e 4
`1TUSC.8302(0) c v voee et 5
`
`Copyright, Designs and Patent Act 1988, c. 48 (UK). .. .. 12
`
`
`
`
`
`
`
`
`Cited Authorities
`
`Page
`Other Authorities
`
`Aaron Wininger, Chinese Court Again Rules Al-
`Generated Images Are Eligible for Copyright
`Protection, CHINA IP Law Uppare (Mar. 14,
`2025), https://www.chinaiplawupdate.com/
`2025/03/chinese-court-again-rules-there-
`is-copyright-in-ai-generated-images/ ............ 12
`
`Copyright Registration Guidance: Works
`Contaiming Material Generated by Artificial
`Intelligence, 88 Fed. Reg. 16190-01
`(March 16,2023). . ..o vt 3
`
`Théatre Dopéra Spatial (SR # 1-11743923581)
`(September 5, 2023), https:/perma.cc/FITM-QFTJ . . .9
`
`Zarya of the Dawn (Registration # VAu001480196)
`(Feb. 21, 2023), https:/perma.cc/AD86-WGPM. . . . ... 9
`
`
`
`
`
`
`
`
`1
`
`INTRODUCTION
`
`This case presents an ideal vehicle for this Court
`to prevent a single executive agency from incorrectly
`deciding a legal question of paramount importance in a
`manner inconsistent with the text of the governing statute
`and applicable Court precedent.
`
`The Copyright Office has imposed a non-statutory
`Human Authorship Requirement for copyright
`registration. It derived this rule not from the Constitution
`or the Copyright Act but from its own nonbinding
`agency materials, including its Compendium, guidance
`publications, and agency reports. This requirement,
`in effect, denies copyright protection to works created
`through certain, unclear uses of computer software.
`
`Dr. Thaler transparently disclosed that an AI system
`that he designed and used generated the image for which
`he sought copyright protection. The Copyright Office
`denied registration based on its Human Authorship
`Requirement. In the time since Dr. Thaler’s registration
`was denied, the Copyright Office has either rejected
`numerous applications disclosing the use of AI or required
`applicants to disclaim content made using AI and thus
`prevented registration of that content.
`
`Other countries, like China and the United Kingdom,
`already permit copyright protection for Al-generated
`works. But the Copyright Office’s reliance on its own non-
`statutory requirements have led to an improper cabining
`of United States copyright law in contradiction of this
`Court’s precedent that copyright law should accommodate
`technological progress.
`
`
`
`
`
`
`
`
`2
`
`As shown in the petition and by the amici in support
`of the petition, this case presents an ideal vehicle for this
`Court to correct the Copyright Office’s significant misstep.
`This case has a relatively simple administrative record,
`and it does not have any other dispositive legal issues,
`contested factual questions, or procedural hurdles that
`would prevent the Court from reaching and resolving the
`question presented, namely whether a work outputted
`by an Al system without a direct, traditional authorial
`contribution by a natural person can be copyrighted.
`
`Critically, the Court’s resolution of this question, which
`comes from the language of the Copyright Office’s own
`test, is urgently needed today as opposed to waiting years
`for a circuit split. This is a vital time for AT development
`and its use in creative industries and for the international
`competitiveness of the United States, which is stifled by
`the Copyright Office’s policy.
`
`For the foregoing reasons the Court should grant Dr.
`Thaler’s Petition for Writ of Certiorari.
`
`ARGUMENT
`
`I. The Copyright Office Erroneously Imported a Non-
`statutory Requirement to Create a Rule Against
`Granting Copyright for Works Created Using
`Computer Software
`
`As the government concedes, the Copyright Office
`denied Dr. Thaler’s copyright application based on its
`Human Authorship Requirement, which requires that
`a natural person peform the “traditional elements of
`authorship in the work[.]” BIO at 12.
`
`
`
`
`
`
`
`
`3
`
`Neither the Constitution nor the Copyright Act
`contain any express Human Authorship Requirement.
`Instead, it is an agency-created policy contained in the
`Copyright Office’s Compendium of U.S. Copyright Office
`Practices. See Pet. App. at 6a. The government claims
`that the “Copyright Office does not treat the use of
`ATI... as precluding the possibility of copyright protection”
`because it “considers the extent to which the human had
`creative control over the work’s expression.” BIO at 15.
`But the Copyright Office’s published guidance confirms
`that “[i]f a work’s traditional elements of authorship were
`produced by a machine ... the Office will not register it”
`and requires that for any portion of a submitted work
`that is Al-generated, “that [portion] is not protected
`by copyright and must be disclaimed in a registration
`application.” Copyright Registration Guidance: Works
`Containing Material Generated by Artificial Intelligence,
`88 Fed. Reg. 16190, 16912 (March 16, 2023) (“Copyright
`Guidance”). In effect, this establishes a per se rule that
`any Al-generated works or portions of work cannot receive
`copyright protection.
`
`The government concedes that the Compendium is
`“guidance” and not a formal rule promulgated by the
`Copyright Office, citing the Compendium, a nonbinding
`policy statement, and various reports issued by the
`Copyright Office—none of which have the force of law—as
`the source of the Human Authorship Requirement. See
`BIO at 4-6, 12, 13.
`
`The government further defends the Copyright
`Office’s effectively per se rule against copyright protection
`for Al-generated works by arguing that the word “author”
`in the Copyright Act refers only to a natural person based
`
`
`
`
`
`
`
`
`4
`
`on three arguments: (1) several Copyright Act provisions
`use “author” in a way that reflects a natural person, see
`BIO at 10-11, (2) this Court’s precedent uses “author” in
`a context that reflects a natural person, see BIO at 11-12,
`and (3) Congress has not expressly rejected the Human
`Authorship Requirement. See BIO at 12-13. None of these
`arguments validate the Copyright Office’s imposition of a
`non-statutory restriction for copyright registration.
`
`A. The Copyright Act Directly Contravenes the
`Human Authorship Requirement
`
`The government wrongly focuses on provisions of the
`Copyright Act that use the word “author” to refer to a
`natural person. That the Copyright Act sometimes defines
`the term of a copyright based on the lifespan of a natural
`person or provides that a copyright can revert to an
`author’s heirs is unremarkable. See 17 U.S.C. §§ 203(a)(2)
`(A), 302(a). Historically, many authors have been natural
`persons, and the statute reflects that reality. But the
`fact that the Copyright Act addresses works created in a
`traditional fashion by a natural person does not address
`the question here of whether the Copyright Act allows for
`copyright of works outputted by an AI system without a
`traditional authorial contribution by a natural person. It
`does.
`
`The government’s argument is counter-statutory—the
`Copyright Act explicitly provides that non-humans, such
`as corporate entities and governments, can be authors.
`See Pet. at 19-20; 17 U.S.C. § 201(b). The government
`erroneously dismisses statutory text directly at odds with
`a Human Authorship Requirement by claiming that the
`word “considered” merely allows for a non-human entity to
`
`
`
`
`
`
`
`
`5
`
`own the copyright, as opposed to being itself an “author.”
`BIO at 13 (“Congress did not use ‘the word “author” by
`itself to cover non-human entities.”” (citing Pet. App. at
`19a-20a).)
`
`But this ignores Copyright Act provisions that
`directly use “author” to encompass non-human entities.
`In its requirements for a work to be a “United States
`work,” the Copyright Act requires that for “a published
`work ... all of the authors of the work are ... legal entities
`with headquarters in, the United States” and for “an
`unpublished work ... all the authors are legal entities with
`headquarters in the United States[.]” 17 U.S.C. § 101.
`This language directly recognizes non-human entities as
`authors.
`
`Similarly, the Copyright Act defines an “anonymous
`work” as “a work ... of which no natural person is identified
`as author.” 17 U.S.C. § 101. If Congress had intended for
`this to only include works by natural person authors who
`have completely hidden their identity it could have said
`so by defining it as “a work for which a natural person
`author provides no name or identification.” Instead, it used
`broader language that plainly encompasses non-human
`authorship.
`
`Section 302(c) builds on this by providing that “[i]n the
`case of an anonymous work ... or a work made for hire,
`the copyright endures for a term of 95 years from the
`year of its first publication or a term of 120 years from
`the year of its creation[.]” 17 U.S.C. § 302(c). This method
`of calculating copyright duration is untethered from the
`life of a natural person and applies to works without a
`natural person author.
`
`
`
`
`
`
`
`
`6
`
`Thus, the government and the Court of Appeal err in
`arguing that the Copyright Act permits the Copyright
`Office to nonetheless impose a non-statutory Human
`Authorship Requirement.
`
`B. This Court’s Precedent Allows for Protection
`of AI-Generated Works
`
`The government similarly argues this Court’s
`precedent only allows natural person authors. See BIO at
`11-12. But it is unsurprising that cases involving human
`authors would discuss authorship in human-centric
`language. The true question is whether this Court’s
`precedent forecloses copyright protection for works made
`using Al systems. That answer is clearly no.
`
`“The sine qua non of copyright is originality[,]” and
`“the requisite level of creativity is extremely low[.]” Feist
`Publications, Inc. v. Rural Telephone Service Co., Inc.,
`499 U.S. 340, 345, 347 (1991). The use of computer software
`to generate a work should not preclude finding that a
`work can be copyrighted. In Burrow-Giles Lithographic
`Co. v. Sarony, 111 U.S. 53 (1884), the Court held that
`a photograph could receive copyright protection; even
`though it “is the mere mechanical reproduction of the
`physical features or outlines of some object... ” Id. at 59.
`The use of a mechanical device did not preclude copyright
`protection for the resulting work.
`
`The Court has also rejected looking at “the creator’s
`design methods, purposes, and reasons” as factors of
`whether a work could be copyrighted. Star Athletica,
`L.L.C. v. Varsity Brands, Inc., 580 U.S. 405, 422 (2017).
`Instead, the Court recognized that its “inquiry is limited
`to how the article and feature are perceived[.]” Id. at 423.
`
`
`
`
`
`
`
`
`7
`
`The government tries to confine Star Athletica to
`being about what kinds of works could be copyrighted
`rather than authorship. See BIO at 15-16. But both Sarony
`and Star Athletica require copyrightability be determined
`without looking to the means used to produce a work. The
`Copyright Office’s policy denying copyright protection
`to any portion of a work that is generated by Al, see
`Copyright Guidance, 88 Fed. Reg. at 16912, contravenes
`this precedent because it precludes copyright protection
`based solely on the means of producing the work.
`
`C. Congress Has Not Acquiesced to the Human
`Authorship Requirement
`
`The government also argues that Congress intended
`for authorship to be construed in accordance with
`the Human Authorship Requirement contained in
`the Compendium issued at the time Congress passed
`Copyright Act of 1976. See BIO at 12-13. But this Court
`previously rejected an argument that Congress’ silence
`regarding the meaning of “employee” in the Copyright Act
`of 1976 “meant to incorporate a line of cases decided under
`the 1909 Act” because “[oJrdinarily, ‘Congress’ silence
`is just that—silence.” Community for Creative Non-
`Violence v. Reid, 490 U.S. 730, 748, 749 (1989). It further
`held that “reliance on legislative silence is particularly
`misplaced here because the text and structure of § 101
`counsel otherwise.” Id. Similarly, as discussed above, the
`language of the Copyright Act and this Court’s precedent
`contravene a Human Authorship Requirement. Thus,
`it is “particularly” inappropriate to read Congress’
`seeming silence as acceptance of the Human Authorship
`Requirement. Even more so when this is the first case of
`the Copyright Office publishing that it has rejected an
`Al-generated work based on its policy.
`
`
`
`
`
`
`
`
`8
`
`Separately, reading Congressional silence as
`deference to an agency interpretation at odds with
`the statutory text is inconsistent with Loper Bright
`Enterprises v. Raimondo, 603 U.S. 369 (2024), which held
`that courts need not defer to agency interpretations of
`statutes and should exercise their independent judgment
`as to statutory meaning. See id. at 413. Similarly, there
`should be no presumption that Congress silently deferred
`to prior agency interpretations of a predecessor statute,
`particularly where, as here, the statute contravenes the
`agency’s interpretation.
`
`II. This Case Presents an Ideal Vehicle to Resolve an
`Issue of Paramount Importance
`
`This case presents an ideal vehicle for addressing the
`issue of whether an AI-generated work, a work outputted
`by a system without a direct, traditional authorial
`contribution by a natural person, can receive copyright
`protection. The Copyright Office rejected Dr. Thaler’s
`application because it has what amounts to a per se rule
`denying copyright protection to any work or portions of
`work generated by certain uses of computer software.
`See Copyright Guidance, 88 Fed. Reg. at 16912. And the
`facts are clear because Dr. Thaler transparently disclosed
`his use of Al to generate the work at issue. Thus, this
`case presents a discrete legal question that does not
`turn on contested evaluation of facts. No other legal or
`procedural issues interfere with the Court addressing the
`central issue of whether Al-generated works can receive
`copyright protection.
`
`The government argues that this case is not an
`appropriate vehicle because it claims that the Copyright
`
`
`
`
`
`
`
`
`9
`
`Office “does not refuse to register works based solely on a
`human author’s use of AI” and in this case, that Dr. Thaler
`represented to the Copyright Office that “the image he
`sought to register involved no creative contribution from
`a human actor at all.” BIO at 17, 18. The government
`misstates the record on both points.
`
`First, the government argues that the use of AI does
`not disqualify a work as a whole from receiving copyright
`protection, but it leaves out that the Copyright Office’s
`policy requires an applicant to disclaim any portion of
`a work generated by AI, and that in the case of a work
`that is entirely Al-generated, as with the present work,
`the entire work is barred from receiving protection. See
`Copyright Guidance, 88 Fed. Reg. at 16912. This policy
`has resulted in rejection of copyright of Al-generated
`works with very high degree of human involvement—far
`beyond the involvement in the present case:
`
`o Zarya of the Dawn (Registration # VAu001480196)
`(Feb. 21, 2023), https://perma.cc/AD86-WGPM—
`the Copyright Office refused to allow copyright
`of comic book images created with an Al system
`even though a human user “provided hundreds or
`thousands of descriptive prompts to Midjourney
`until the hundreds of iterations [created] as perfect
`a rendition of her vision as possible.” Id. at 8.
`
`» Théatre D’opéra Spatial (SR # 1-11743923581)
`(September 5, 2023), https://perma.cc/F97M-
`QFTJ—the Copyright Office refused to allow
`copyright for a work that won the 2022 Colorado
`State Fair’s annual fine art competition because
`of the use of AI to generate the base of the work,
`
`
`
`
`
`
`
`
`10
`
`even though a human user “input[] numerous
`revisions and text prompts at least 624 times”
`that combined two “big picture description[s]” and
`instructed the AI system on “the overall image’s
`genre and category,” “the tone of the piece,” “how
`lifelike ... the piece [should] appear,” “how colors
`[should be] used,” the “style/era the artwork should
`depict,” and other “various parameters|.]” Id. at 6.
`
`Under the Copyright Office’s broad policy, the
`determinative factor in this case and in the cases described
`above was the use of “generative AI” in the creation of a
`work. But the policy is also entirely vague and ambiguous,
`as it fails to differentiate between works made using
`generative Al versus traditional computer software, or
`what specifically a human computer user like Dr. Thaler
`must do to qualify for protection. Thus, the issue squarely
`presented in this case would provide clear guidance for
`countless other works created with the use of Al.
`
`Second, the government’s claim that Dr. Thaler
`represented that his work had “no creative contribution
`from a human actor,” BIO at 18, is actually a quote from
`the Court of Appeals that quotes the Copyright Office’s
`submissions. See Pet. App. at 8a. To the contrary, Dr.
`Thaler only claimed that the work lacked “traditional
`human authorship” not that it had no human contribution
`whatsoever. See id.; Pet. At 9 (“Stephen Thaler, is the owner
`of the AT that generated the [computer-generated work]
`and should thus be the owner of any copyright.... Stephen
`Thaler is also the Al’s user and programmer.”) Including
`in his requests for reconsideration, which the Copyright
`Office was required to consider holistically in rejecting
`
`
`
`
`
`
`
`
`11
`
`his application,! as well as in the other proceedings below,
`Dr. Thaler consistently argued that he should also be
`recognized as the author under established doctrines of
`work made for hire, chattel theory, and based on his non-
`traditional and indirect creative contributions to building
`and using his Al system. See Pet. App. at 8a—9a. Thus,
`this case presents all these arguments for the Court to
`consider when deciding the ultimate issue of copyright
`protection for works made using Al systems.
`
`Third, although the government contends that this
`Court should not take this up because there is no circuit
`conflict, see BIO at 16, the question requires resolution
`now and not years later. As amici point out this question
`already has enormous public significance. Of course, there
`cannot be a circuit split now given that this case represents
`the first published denial of a copyright registration due
`to the use of an Al system, as well as the first challenge
`to such a denial based on the APA. But there is already
`a conflict between the Copyright Office’s policy and
`
`1. The Office must take all the information provided in the
`requests for reconsideration into account. Per the Office’s Circular
`20 (available at: https:/www.copyright.gov/cires/circ20.pdf), “[a] first
`request for reconsideration will be reviewed by a Registration
`Program staff attorney who did not participate in the initial
`examination of your claim. The Office will base its decision on
`your submission and the administrative record.” In addition, “[a]
`second request for reconsideration will be reviewed de novo by the
`Review Board, which consists of the Register of Copyrights, the
`general counsel of the U.S. Copyright Office (or their respective
`designees), and a third individual designated by the Register. The
`Office will base its decision on your written submission and the
`administrative record.”
`
`
`
`
`
`
`
`
`12
`
`other countries which allow copyright protection for AI-
`generated works.
`
`In the United Kingdom “[i]n the case of a
`... work which is computer-generated, the author
`shall be taken to be the person by whom the
`arrangements necessary for the creation of the
`
`work are undertaken.” Copyright, Designs and
`Patent Act 1988, c. 48, § 93) (UK).
`
`China has recognized that “images generated
`with Artificial Intelligence (AI) are eligible for
`copyright protection.” Aaron Wininger, Chinese
`Court Again Rules AI-Generated Images
`Are Eligible for Copyright Protection, China
`IP Law Update (Mar. 14, 2025), https:/www.
`chinaiplawupdate.com/2025/03/chinese-court-
`again-rules-there-is-copyright-in-ai-generated-
`images/.
`
`This split means that works are eligible for copyright
`protection in other jurisdictions but not here, which places
`United States residents and businesses at a competitive
`disadvantage.
`
`
`
`
`
`
`
`
`13
`ITI. CONCLUSION
`
`For the foregoing reasons, Dr. Thaler respectfully
`asks that the Court grant his Petition for Certiorari and
`ultimately determine that the Work can be registered for
`copyright.
`
`Respectfully submitted,
`
`RyaN ABBOTT
`
`Counsel of Record
`Brown, NErI, SMiTH & KHAN, LLP
`11601 Wilshire Boulevard,
`
`Suite 2080
`Los Angeles, CA 90025
`(310) 593-9890
`ryan@bnsklaw.com
`
`Counsel for Petitioner
`
`Dated: February 9, 2026
`
`
`
`
`
`
`
`
`