No. 25-
`In the
`Supreme Court of the United States
`On PetitiOn fOr a Writ Of CertiOrari tO the
`United StateS COUrt Of aPPealS fOr the
`diStriCt Of COlUmbia CirCUit
`A
`(800) 274-3321 • (800) 359-6859
`PETITION FOR A WRIT OF CERTIORARI
`386414
`STEPHEN THALER,
`Petitioner,
`v.
`SHIRA PERLMUTTER, REGISTER OF COPYRIGHTS
`AND DIRECTOR OF THE UNITED STATES
`COPYRIGHT OFFICE, et al.,
`Respondents.
`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
`
`
`
`
`
`
`
`i
`QUESTION PRESENTED
`1. Whether works outputted by an AI system without a
`direct, traditional authorial contribution by a natural
`person can be copyrighted.
`
`
`
`
`
`
`
`ii
`RELATED PROCEEDINGS
`Thaler v. Perlmutter, No. 23-5233 (D.C. Cir.) (opinion and
`judgment issued on March 18, 2025).
`Thaler v. Perlmutter , No. 22-1564-BAH (D.D.C.) (order
`and memorandum of opinion denying plaintiff’s motion
`for summary judgment and granting defendants’ cross-
`motion for summary judgment issued on August 18, 2023).
`
`
`
`
`
`
`
`iii
`TABLE OF CONTENTS
`Page
`QUESTION PRESENTED ....................... i
`RELATED PROCEEDINGS..................... ii
`TABLE OF CONTENTS......................... iii
`TABLE OF APPENDICES ...................... vi
`TABLE OF CITED AUTHORITIES ............. vii
`OPINIONS AND ORDERS BELOW ............... 1
`JURISDICTION................................. 2
`CONSTITUTIONAL AND STATUTORY
` PROVISIONS INVOLVED ..................... 2
`INTRODUCTION................................ 4
`STATEMENT OF THE CASE .................... 5
`I. Factual and Procedural History .............. 1
`THE REASONS FOR GRANTING THE WRIT . . . .11
`I. The Decision Below Conflicts with the Text
` and Structure of the Copyright Act .......... 11
`A. The Copyright Office’s Human
` Authorship Requirement Is Untenable ... 11
`
`
`
`
`
`
`
`iv
`Table of Contents
`Page
`1. The Copyright Office Is Policing
`Methods of Creation, when the
`Supreme Court Has Already
` Rejected this Approach............. 13
`2. Unintentional and Unforeseen
`Results Are a Cornerstone of
`Copyrightable Works and the
` Creative Process .................. 15
`3. The Office’s Test, if Applied Across
`the Board, Would Mark the End
`of Copyright Registration for
` Photography ...................... 16
`B . The Copyright Office’s Rule
`Contravenes the Plain Language of
` the Copyright Act ..................... 18
`C . As the Work Is Entitled to
`Copyright Protection, the Copyright
`Office Is Denying Dr. Thaler His
` Rightful Property ..................... 21
`1. The Work Is a Work for Hire
`Pursuant to the Application of
` Common Law Principles ............ 21
`2. In the Alternative the Work is
`Dr. Thaler’s Under the Classic
` Property Principle of Accession...... 22
`
`
`
`
`
`
`
`v
`Table of Contents
`Page
`II. The Copyright Office’s Decision Defies
`the Constitutionally Mandated Purpose
` of the Copyright Act ....................... 25
`III. This Case Is a Necessary Vehicle for
`Deciding Whether AI-Generated Works
` Are Eligible for Copyright Protection ........ 31
`IV. CONCLUSION ........................... 34
`
`
`
`
`
`
`
`vi
`TABLE OF APPENDICES
`Page
`APPENDIX A — OPINION OF THE UNITED
`STATES COURT OF APPEALS FOR THE
`DISTRICT OF COLUMBIA CIRCUIT,
` FILED MARCH 18, 2025 ...................... 1a
`APPENDIX B — MEMORANDUM OPINION OF
`THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA,
` FILED AUGUST 18, 2023..................... 28a
`APPENDIX C — ORDER OF THE UNITED
`STATES COURT OF APPEALS FOR THE
`DISTRICT OF COLUMBIA CIRCUIT,
` FILED MAY 12, 2025 ........................ 47a
`APPENDIX D — ORDER OF THE UNITED
`STATES COURT OF APPEALS FOR THE
`DISTRICT OF COLUMBIA CIRCUIT,
` FILED MAY 12, 2025 ........................ 49a
`
`
`
`
`
`
`
`vii
`TABLE OF CITED AUTHORITIES
`Page
`Federal Cases
`Action Tapes, Inc. v. Mattson,
` 462 F .3d 1010 (8th Cir. 2006).................... 30
`Alfred Bell & Co. v. Catalda Fine Arts,
` 191 F .2d 99 (2d Cir. 1951)....................... 16
`Bell Atl. Bus. Sys. Services, Inc. v.
`Hitachi Data Sys. Corp., No. C,
` 93-20079 JW, 1995 WL 836331
` (N.D. Cal. Dec. 14, 1995) ....................... 30
`Bittner v. United States,
` 598 U.S. 85 (2023)............................. 18
`Bleistein v. Donaldson Lithographing Co.,
` 188 U.S. 239 (1903)............................ 14
`Brown v. Legal Found. of Washington,
` 538 U.S. 216 (2003)............................ 23
`Burrow-Giles Lithographic Co. v. Sarony,
` 111 U.S. 53 (1884)......................... 33, 34
`Chamberlin v. Uris Sales Corp.,
` 150 F .2d 512 (2d Cir. 1945) .................. 15, 16
`Community for Creative Non-Violence v. Reid,
` 490 U.S. 730 (1989)......................... 19, 22
`
`
`
`
`
`
`
`viii
`Cited Authorities
`Page
`Cruz v. Cox Media Grp., LLC,
` 444 F . Supp. 3d 457 (E.D.N.Y. 2020) ............. 17
`Eldred v. Ashcroft,
` 537 U.S. 186 (2003)............................ 26
`Ets-Hokin v. Skyy Spirits, Inc.,
` 225 F .3d 1068 (9th Cir. 2000) ................ 17, 18
`Feist Publications, Inc. v. Rural Tel. Serv. Co.,
` 499 U.S. 340 (1991)......................... 14, 27
`Food & Drug Admin. v.
`Brown & Williamson Tobacco Corp.,
` 529 U.S. 120 (2000)............................ 20
`Fortnightly Corp. v. United Artists Television, Inc.,
` 392 U.S. 390 (1968)......................... 30, 33
`Fox Film Corp. v. Doyal,
` 286 U.S. 123, 52 S.Ct. 546, 76 L.Ed. 1010 ......... 26
`Golan v. Holder,
` 565 U.S. 302 (2012)............................ 26
`Goldstein v. California,
` 412 U.S. 546 (1973)......................... 30, 33
`Harney v. Sony Pictures Television, Inc.,
` 704 F .3d 173 (1st Cir. 2013) ..................... 16
`
`
`
`
`
`
`
`ix
`Cited Authorities
`Page
`Harper & Row Publishers, Inc. v.
`Nation Enterprises,
` 471 U.S. 539 (1985)............................ 27
`Holland v. Nat’l Mining Ass’n,
` 309 F .3d 808 (D.C. Cir. 2002) ................... 31
`Horror Inc. v. Miller,
` 15 F .4th 232 (2d Cir. 2021)................... 21, 22
`In re C Tek Software, Inc.,
` 127 B.R. 501 (Bankr. D.N.H. 1991)............... 24
`In re Trade-Mark Cases,
` 100 U.S. 82 (1879).............................. 9
`Jewelers’ Circular Pub. Co. v. Keystone Pub. Co.,
` 274 F . 932 (S.D.N.Y. 1921) ...................... 17
`Lamie v. United States Trustee,
` 540 U.S. 526 (2004)............................. 7
`Mannion v. Coors Brewing Co.,
` 377 F . Supp. 2d 444 (S.D.N.Y. 2005).............. 17
`Marvel Characters, Inc. v. Kirby,
` 726 F .3d 119 (2d Cir. 2013) ................... 7, 20
`Mazer v. Stein,
` 347 U.S. 201 (1954)............................ 27
`
`
`
`
`
`
`
`x
`Cited Authorities
`Page
`Nebraska v. Iowa,
` 143 U.S. 359 (1892)............................ 23
`Phillips v. Washington Legal Found.,
` 524 U.S. 156 (1998)............................ 24
`Southern California Edison Co. v. F.E.R.C.,
` 195 F .3d 17 (D.C. Cir. 1999)..................... 20
`Star Athletica, L.L.C. v. Varsity Brands, Inc.,
` 580 U.S. 405 (2017)............................ 13
`Syncor Int’l Corp. v. Shalala,
` 127 F .3d 90 (D.C. Cir. 1997) .................... 12
`Thaler v. Perlmutter,
` 1:22-cv-01564-BAH
` (D.D.C. Aug. 18, 2023) ............... 2, 8-10, 21, 22
`Thaler v. Perlmutter,
` 130 F .4th 1039 (D.C. Cir. 2025)................... 1
`Thaler v. Perlmutter,
` 687 F . Supp. 3d 140 (D.D.C. 2023) ................ 1
`Twentieth Century Music Corp. v. Aiken,
` 422 U.S. 151 (1975)............................ 26
`United States v. Paramount Pictures,
` 334 U.S. 131 (1948)............................ 26
`
`
`
`
`
`
`
`xi
`Cited Authorities
`Page
`United States v. Ron Pair Enters., Inc.,
` 489 U.S. 235 (1989)............................ 18
`Warren v. Fox Fam. Worldwide, Inc.,
` 328 F .3d 1136 (9th Cir. 2003) ................. 7, 20
`Washingtonian Pub. Co. v. Pearson,
` 306 U.S. 30 (1939)............................. 25
`Webb’s Fabulous Pharmacies, Inc. v. Beckwith,
` 449 U.S. 155 (1980)............................ 24
`State Cases
`Carruth v. Easterling,
` 247 Miss. 364 (1963) ........................... 23
`Goodrich Silvertown Stores of B.F. Goodrich Co. v.
`Pratt Motor Co.,
` 198 Minn. 259 (1936) .......................... 24
`Federal Statutes and Constitutional Provisions
`5 U.S.C. § 706(2)................................. 12
`17 U.S.C. § 101 .................................. 13
`17 U.S.C. § 102(a)........................... 2, 18, 19
`17 U.S.C. § 102(b).............................. 3, 19
`
`
`
`
`
`
`
`xii
`Cited Authorities
`Page
`17 U.S.C. § 201.................................. 21
`17 U.S.C. § 201(b)................................. 3
`17 U.S.C. § 203.................................. 19
`17 U.S.C. § 203(a)................................. 3
`17 U.S.C. § 302(c).............................. 3, 19
`28 U.S.C. § 1254(1)................................ 2
`U.S. ConSt. art. I, § 8, cl. 8 ...................... 2, 25
`Other Authorities
`1 meLvILLe b. nImmeR & DavID nImmeR,
` n ImmeR on CoPyRIght (1999).................... 18
`1 meLvILLe b. nImmeR & DavID nImmeR,
` n ImmeR on CoPyRIght (rev. ed. 2022)............. 20
`Dan L. Burk,
` Cheap Creativity and What It Will Do,
` 57 ga. L. Rev. 1669 (2023)...................... 32
`Michael Chui & Lareina Yee,
` AI Could Increase Corporate Profits by $4.4
` Trillion a Year, According to New Research,
` mCKInSey gLob. InSt. (Jul. 7, 2023), https://
` www.mckinsey.com/mgi/media-center/ai-
` could-increase-corporate-profits-by-4-trillion-
` a-year-according-to-new-research ............... 31
`
`
`
`
`
`
`
`xiii
`Cited Authorities
`Page
`David De Cremer et al.,
` How Generative AI Could Disrupt Creative Work,
` haRv. bUS. Rev. (Apr. 13, 2023), https://hbr.
` org/2023/04/how-generative-ai-could-disrupt-
` creative-work ............................. 31, 32
`Edward Lee,
` Prompting Progress: Authorship in the Age of Ai,
` 76 Fla. L. Rev. 1445 (2024) ..................... 12
`Edward Lee,
` The Code Redfor Copyright Law,
` 76 Fla. L. Rev. F . 1 (2024)...................... 12
`H.R. Rep. No. 2222 .............................. 28
`H.R. Rep. No. 94-1476............................ 29
`Jane C. Ginsburg,
` A Tale of Two Copyrights: Literary Prop. in
` Revolutionary France & Am.,
` 64 Tul. L. Rev. 991 (1990) ...................... 27
`Thomas W. Merrill,
` Accession and Original Ownership,
` 1 J. LegaL anaLySIS 459 (2009).............. 22, 23
`Gary Meyers,
` The Future Is Now: Copyright Protection
` for Works Created by Artificial Intelligence,
` 102 tex. L. Rev. onLIne (2023) .............. 25, 29
`
`
`
`
`
`
`
`xiv
`Cited Authorities
`Page
`Juliet M. Moringiello & Christopher K. Odinet,
` The Property Law of Tokens,
` 74 FLa. L. Rev. 607 ........................... 23
`Sarah Perez,
` Google’s AI-Powered Search Experience Can Now
` Generate Images, Write Drafts, teChCRUnCh
` (Oct. 12, 2023, 11:00 AM), https://techcrunch.com/
` 2023/10/12/googles-ai-powered-search-experience-
` can-now-generate-images-write-drafts/ .......... 32
`Stewart E. Sterk,
` Rhetoric & Reality in Copyright Law,
` 94 Mich. L. Rev. 1197 (1996)................. 26, 27
`The Cathach / The Psalter of St Columba,
` Royal Irish Academy), https://www.ria.ie/
` collections/manuscripts/manuscripts-in-
` languages-other-than-irish/the-cathach-the-
` psalter-of-st-columba/#further-reading
` (last visited Aug. 7, 2022) ...................... 23
`Simon Torkington,
` How Might Generative AI Change Creative Jobs?,
` woRLD eCon. F . (May 9, 2023), https://www.
` weforum.org/agenda/2023/05/generative-ai-
` creative-jobs/ ................................. 32
`U.S. CoPyRIght oFFICe,
` ComPenDIUm oF U.S. CoPyRIght oFFICe PRaCtICeS
` (3d ed. 2021) ........................... 11, 12, 15
`
`
`
`
`
`
`
`xv
`Cited Authorities
`Page
`U.S. CoPyRIght oFFICe,
` SIxty-eIghth annUaL RePoRt oF the RegISteR oF
` CoPyRIghtS (1965)............................. 12
`
`
`
`
`
`
`
`1
`Petitioner asks this Court for a writ of certiorari to
`review the judgment of the United States Court of Appeals
`for the District of Columbia in this case.
`OPINIONS AND ORDERS BELOW
`The opinion of the United States Court of Appeals
`for the District of Columbia is reported at Thaler v.
`Perlmutter , 130 F .4th 1039 (D.C. Cir. 2025), and is
`reproduced at Pet. App. 1a-27a.
`The memorandum opinion of the United States
`District Court for the District of Columbia is reported at
`Thaler v. Perlmutter , 687 F . Supp. 3d 140 (D.D.C. 2023),
`aff’d, 130 F .4th 1039 (D.C. Cir. 2025), and is reproduced
`at Pet. App. 28a-46a.
`The order of the United States Court of Appeals for
`the District of Columbia denying the petition for rehearing
`(unreported) is available at D.C. Cir., Case No. 23-5233,
`Document No. 2115319, May 12, 2025, and is reproduced
`at Pet. App. 47a-48a.
`The order of the United States Court of Appeals for
`the District of Columbia denying the petition for rehearing
`en banc (unreported) is available at D.C. Cir., Case No.
`23-5233, Document No. 2115321, May 12, 2025, and is
`reproduced at Pet. App. 49a-50a.
`The order of the United States District Court for
`the District of Columbia denying Plaintiff Stephen
`Thaler’s Motion for Summary Judgment and granting
`Defendants Shira Perlmutter’s and the United States
`Copyright Office’s Cross-Motion for Summary Judgment,
`
`
`
`
`
`
`
`2
`and directing the Clerk to close the case (unreported) is
`docketed at Thaler v. Perlmutter , 1:22-cv-01564-BAH,
`Document No. 23 (D.D.C. Aug. 18, 2023).
`JURISDICTION
`The D.C. Circuit Court of Appeal filed its opinion on
`March 18, 2025, Pet. App. 1, and denied rehearing and
`rehearing en banc on May 12, 2025, Pet. App. 48a and 50a.
`The Chief Justice extended the time for filing a petition
`for writ of certiorari to October 9, 2025. This Court has
`jurisdiction under 28 U.S.C. § 1254(1).
`CONSTITUTIONAL AND STATUTORY
`PROVISIONS INVOLVED
`The U.S. Constitution’s Copyright and Patent Clause,
`art. I, § 8, cl. 8, provides, in relevant part:
`The Congress shall have Power . . . To promote
`the Progress of Science and the Useful Arts,
`by securing for limited Times to Authors
`and Inventors the exclusive Right to their
`respective Writings and Discoveries;. . . . The
`U.S. Constitution’s art. I, § 1, provides: All
`legislative powers herein granted shall be
`vested in a Congress of the United States,
`which shall consist of a Senate and House of
`Representatives.
`17 U.S.C. § 102(a) provides, in relevant part:
`Copyright protection subsists, in accordance
`with this title, in original works of authorship
`fixed in any tangible medium of expression[.]
`
`
`
`
`
`
`
`3
`17 U.S.C. § 102(b) provides, in relevant part:
`In no case does copyright protection for an
`original work of authorship extend to any
`idea, procedure, process, system, method of
`operation, concept, principle, or discovery,
`regardless of the form in which it is described,
`explained, illustrated, or embodied in such
`work.
`17 U.S.C. § 201(b) provides, in relevant part:
`[T]he employer or other person for whom the
`work was prepared is considered the author for
`purposes of this title[.]
`17 U.S.C. § 203(a) provides, in relevant part:
`In the case of any work other than a work made
`for hire, the exclusive or nonexclusive grant of a
`transfer or license of copyright or of any right
`under a copyright, executed by the author on or
`after January 1, 1978, otherwise than by will,
`is subject to termination under the following
`conditions[.]
`17 U.S.C. § 302(c) provides, in relevant part:
`In the case of an anonymous work, a
`pseudonymous 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,
`whichever expires first.
`
`
`
`
`
`
`
`4
`INTRODUCTION
`This case presents the question of whether a work
`outputted by an artificial-intelligence (“AI”) system
`without a direct, traditional authorial contribution by a
`natural person can be copyrighted. A straightforward
`reading of the Copyright Act leads to the conclusion that
`it can and should be. The U.S. Copyright Office, however,
`imports words into the Act that Congress never drafted
`and requires vague elements of human authorship that
`arose from the Copyright Office itself—without statutory
`support. Indeed, the Copyright Act explicitly permits
`nonhuman authorship.
`The Copyright Office sometimes enforces a requirement
`that defies Supreme Court precedent by policing methods
`of creation and by setting onerous limitations on the use of
`technology. If this requirement was consistently enforced,
`it would spell the end of copyright protection for many
`photographs and other works created with technological
`assistance. 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.
`By denying copyright in an original work, the
`Copyright Office denied Dr. Thaler his rightful property—
`property generated by his machine which he created,
`owned, and operated. In doing so, the Copyright Office
`created a chilling effect on anyone else considering using
`AI creatively. This defies the constitutional goals from
`which Congress was empowered to create copyright,
`namely, the creation and dissemination of creative works.
`
`
`
`
`
`
`
`5
`The immense importance of copyright and the surge
`of AI development in the United States and abroad make
`the question presented here of paramount importance.
`Because this case is a clean vehicle, as it purely presents
`the question of whether a work generated using AI can
`be owned, and because it comes at a time where the
`question has never been more economically and artistically
`relevant, the petition for a writ of certiorari should be
`granted.
`STATEMENT OF THE CASE
`The 1976 Copyright Act does not require a particular
`sort of traditional human contribution for a work to obtain
`copyright protection. Instead, the Act goes so far as to
`explicitly allow nonhuman authorship of copyrighted
`works. Nonetheless, the U.S. Copyright Office and the
`U.S. Court of Appeals for the District of Columbia have
`determined that an unwritten, and unclear, rule of
`human authorship should be read into the statute. This
`interpretation is both contrary to the plain language of the
`Act and it defies basic canons of statutory construction. It
`also frustrates the purpose of the Act and runs counter to
`decades of Supreme Court precedent that favor copyright
`law adapting to accommodate technological progress.
`Dr. Stephen Thaler develops, owns, and applies AI
`systems capable of generating creative output including
`visual art in the absence of a direct contribution from
`a traditional human author (“AI-Generated Works”).
`Plaintiff’s AI system outputted a two-dimensional artwork
`
`
`
`
`
`
`
`6
`(the “Work”) titled “A Recent Entrance to Paradise,”
`reproduced below:
`Pet. App. 29a–30a. The Work would undoubtably qualify
`for copyright protection had it been made directly and
`solely by Dr. Thaler without any computer assistance.
`However, the Copyright Office denied Dr. Thaler’s
`application for copyright registration, holding that a work
`created by a nonhuman cannot be registered. Its primary
`source for its decision was its own agency Circular, which
`articulates a “human-authorship requirement,” mandating
`that a natural person execute the traditional elements of
`authorship, a requirement found nowhere within the Act.
`Pet. App. 2a. The district court granted the Copyright
`Office summary judgment against Dr. Thaler, Pet. App.
`
`
`
`
`
`
`
`7
`28a, and the D.C. Circuit affirmed, Pet. App. 1. In doing
`so, it imported “absent word[s] into the statute.” Lamie v.
`United States Trustee, 540 U.S. 526, 538 (2004). This was
`contrary not only to the plain text of the Copyright Act,
`but it also has an effect that is contrary to the purpose of
`the Copyright Act as articulated by this Court.
`The Act has a comprehensive design that encompasses
`nonhuman authorship and therefore fully incorporates
`AI-Generated Works. 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. See, e.g., Marvel
`Characters, Inc. v. Kirby, 726 F .3d 119, 143 (2d Cir. 2013);
`Warren v. Fox Fam. Worldwide, Inc., 328 F .3d 1136, 1140–
`41 (9th Cir. 2003). Indeed, when registering such works,
`there is no requirement to disclose any involvement by a
`natural person, much less the sort of traditional authorial
`contributions the Copyright Office now demands.
`The Copyright Office has vastly overstepped its
`authority by engaging in extra-statutory policy making.
`Worse, it is enforcing a policy that is deeply hostile to
`the use of technology at a time when the United States is
`seeking to be a world leader in AI.
`This case is the ideal vehicle for the Supreme Court
`to resolve the critically important question of whether AI
`output can receive copyright protection. That is because,
`first, there are no factual disputes. On the record, Dr.
`Thaler built, used, and owned the AI system that outputted
`the relevant work, and specifically disclaimed a traditional
`authorial contribution in line with the Copyright Office’s
`own stated test for registration. The Copyright Office’s
`
`
`
`
`
`
`
`8
`refusal was solely based on its opinion that too much AI
`had been used in the Work’s creation. Second, this case is
`timely, as in the time between the Dr. Thaler’s application
`for copyright registration and today, the creation of AI-
`Generated Works has become a mainstream activity both
`in the creative industry and by the American public.
`Obtaining an answer now to this question presented is
`of paramount importance. If the Court denies certiorari,
`even if it later overturns the Copyright Office’s test in
`another case, it will be too late. The Copyright Office will
`have irreversibly and negatively impacted AI development
`and use in the creative industry during critically important
`years.
`I. Factual and Procedural History
`Dr. Thaler appeals from: (1) the Judgment entered on
`August 18, 2023, see Thaler v. Perlmutter, District Court
`Case No. 1:22-cv-01564-BAH, Document No. 23 (D.D.C.
`Aug. 18, 2023); and (2) the Memorandum Opinion dated
`August 18, 2023, Pet. App. 28a, denying Dr. Thaler’s
`motion for summary judgment and granting the U.S.
`Copyright Office’s motion for summary judgment denying
`copyright in the Work described in the Statement of the
`Case. Pet. App. 46a.
`On November 3, 2018, Dr. Thaler filed an application
`to register the Work with the Copyright Office. Critically,
`he transparently disclosed that that the submission lacked
`traditional human authorship—providing that it was
`“autonomously created by a computer algorithm running
`on a machine.” See Thaler v. Perlmutter , 1:22-cv-01564-
`BAH, Document No. 13-2 (D.D.C. Aug. 18, 2023). Dr.
`
`
`
`
`
`
`
`9
`Thaler further explained that he, Stephen Thaler, is the
`owner of the AI that generated the AI-Generated Work
`and should thus be the owner of any copyright. Id. And
`he explained that he, Stephen Thaler, is also the Al’s user
`and programmer. Id.
`On August 12, 2019, the Copyright Office refused to
`register the copyright on the grounds that it “lack[ed]
`the human authorship necessary to support a copyright
`claim.” See Thaler v. Perlmutter , 1:22-cv-01564-BAH,
`Document No. 13-4 (D.D.C. Aug. 18, 2023). It emphasized
`that according to the application, the Work was “created
`autonomously by machine.” Id.
`On September 8, 2019, Dr. Thaler filed a request
`for reconsideration to the Copyright Office. See Thaler
`v. Perlmutter , 1:22-cv-01564-BAH, Document No. 13-5
`(D.D.C. Aug. 18, 2023). In that Request, he expounded that
`obvious ownership options other than the Al include the
`machine’s owner, user, or programmer(s). Id. Specifically,
`he reiterated that he was the AI’s user and programmer.
`Id. He explained that there is no other individual involved
`with the Al who would be an appropriate recipient of any
`copyright to the submitted work. Id.
`The Copyright Office denied the request for
`reconsideration, by arguing it only vests in the “the fruits
`of intellectual labor” that “are founded in the creative
`powers of the mind,” relying on In re Trade-Mark Cases,
`100 U.S. 82, 94 (1879). See Thaler v. Perlmutter, 1:22-cv-
`01564-BAH, Document No. 13-8 (D.D.C. Aug. 18, 2023).
`The Copyright Office argued that since copyright law is
`limited to “original intellectual conceptions of the author,”
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`10
`it refused to register the Work because it determined it
`was not created by a human being. Id.
`On May 27, 2020, Dr. Thaler filed a second request
`for reconsideration with the Copyright Office. See Thaler
`v. Perlmutter , 1:22-cv-01564-BAH, Document No. 13-7
`(D.D.C. Aug. 18, 2023). The Copyright Office denied this
`request on February 14, 2022. See Thaler v. Perlmutter ,
`1:22-cv-01564-BAH, Document No. 13-8 (D.D.C. Aug. 18,
`2023). The Copyright Office accepted that the Work was
`autonomously created by artificial intelligence without
`any creative contribution from a human actor. Id. And
`it limited its review to whether the human-authorship
`requirement was unconstitutional and unsupported by
`case law. Id.
`Seeking relief under the Administrative Procedure
`Act in the D.C. District Court, Dr. Thaler challenged
`“traditional” human authorship. Pet. App. 7a. He
`emphasized that “the present submission lacks traditional
`human authorship—it was autonomously generated by an
`AI,” and that he should own the copyright, given his status
`as the owner of the AI that generated the AI-Generated
`Work. Pet. App. 7a (emphasis added).
`The District Court issued an order and memorandum
`of opinion on August 18, 2023, denying Thaler’s motion
`for summary judgment and granting Copyright Office’s
`motion for summary judgment. See Thaler v. Perlmutter,
`District Court Case No. 1:22-cv-01564-BAH, Document
`No. 23 (D.D.C. Aug. 18, 2023) and Pet. App. 28a–46a. The
`Court based its decision on its framing of the question at
`issue: “the single legal question presented here is whether
`a work generated autonomously by a computer falls
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`11
`under the protection of copyright law upon its creation.”
`Pet. App. 35a. The Court concluded that, “United States
`copyright law protects only works of human creation.”
`Pet. App. 36a.
`On October 11, 2023, Dr. Thaler filed a notice of appeal.
`Following briefing and an oral argument on September
`19, 2024, the D.C. Circuit Court of Appeal affirmed the
`lower court’s judgment. Pet. App. 1a–24a. Dr. Thaler
`sought reconsideration and reconsideration en banc, filing
`a petition on May 2, 2025, which the D.C. Circuit denied on
`May 12, 2025. Pet. App. 48a and 50a. Following this denial,
`Dr. Thaler was granted a 60-day extension to file the
`instant Petition for Certiorari; so, this Petition is timely.
`THE REASONS FOR GRANTING THE WRIT
`I. The Decision Below Conflicts with the Text and
`Structure of the Copyright Act
`A. The Copyright Office’s Human Authorship
`Requirement Is Untenable
`The Copyright Office will only register works
`created by a natural person. U.S. C oPyRIght oFFICe,
`ComPenDIUm oF U.S. C oPyRIght oFFICe PRaCtICeS § 306
`(3d ed. 2021) (“The U.S. Copyright Office will register
`an original work of authorship, provided that the work
`was created by a human being”). The Copyright Office
`refers to this limitation on copyright protection as “The
`Human Authorship Requirement.” Id. To qualify as a
`human-made work, the Copyright Office has introduced
`a test called “traditional elements of authorship” in its
`most recent Circular. Id. This test originates from the
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`12
`Copyright Office, not from any case law or statute. The
`Copyright Office has also not defined what the traditional
`elements of authorship are, nor has it consistently enforced
`the test in a manner from which any principles can be
`gleaned, which is clearly “arbitrary” and “capricious.” 5
`U.S.C. § 706(2); see Edward Lee, Prompting Progress:
`Authorship in the Age of AI , 76 FLa. L. R ev. 1445, 1466
`(2024)1445, 1466 (2024).
`The Copyright Office’s test, instead of coming from
`a statute or federal court, comes from the musings of a
`former Register of Copyrights in 1965. See U.S. CoPyRIght
`oFFICe, SIxty-eIghth annUaL RePoRt oF the RegISteR oF
`CoPyRIghtS 5 (1965) (stating that “traditional elements
`of authorship in the work (literary, artistic, or musical
`expression or elements of selection, arrangement, etc.)
`[must be] actually conceived and executed not by man
`but by a machine”). Outside of this statement, there is no
`other basis for a test based on the “traditional elements
`of authorship,” and the Copyright Office’s Compendium
`has never even explained what the traditional elements
`are. See ComPenDIUm (thIRD) § 313.2.
`Without a clear definition, the Copyright Office
`provides the public a moving target instead of a real
`standard or rule. The test was never subject to notice and
`comment procedures, much less rulemaking, despite such
`being required, so it provides no real guidance in the most
`critical emerging area of technology in copyright law. See
`Edward Lee, The Code Red for Copyright Law , 76 Fla.
`L. Rev. F . 1, 7–15 (2024); Syncor Int’l Corp. v. Shalala ,
`127 F .3d 90, 95 (D.C. Cir. 1997) (finding the agency’s
`“guidance” for new technology, especially one presenting
`“unique” factual considerations, is “exactly the sort[]
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`13
`of change[] in fact and circumstance which notice and
`comment rulemaking is meant to inform”). The Copyright
`Office’s test is untenable and tremendously harmful to
`American creators in a critically important sector of the
`economy.
`1. The Copyright Office Is Policing Methods
`of Creation, when the Supreme Court Has
`Already Rejected this Approach
`The Supreme Court has explained that the question
`of whether copyright exists in a work cannot hinge on the
`government “consider[ing] evidence of the creator’s design
`methods, purposes, and reasons.” Star Athletica, L.L.C.
`v. Varsity Brands, Inc. , 580 U.S. 405, 422 (2017). While
`the Supreme Court in Star Athletica was interpreting
`specific language as to what elements to consider in
`the copyrightability of the decorative portions of useful
`articles, the case’s holding has broad applicability to the
`copyrightability of any artwork. Id. at 412–19 (discussing
`17 U.S.C. § 101). Given consideration of the design in a
`useful article is literally carving out those portions that
`are otherwise graphical art as if it were “separated . . .
`and applied in another medium” which “would qualify
`as two-dimensional works of art,” as in this case, the
`Supreme Court’s determination applies equally that one
`is not supposed to consider design methods. Id. at 417.
`Likewise, the Supreme Court’s determination is also
`applicable in this case because no requirement to consider
`methods exists in the Act regarding authorship. See id.
`Nothing in the Act makes decorative portions of a useful
`article subject to less scrutiny than any other artwork;
`rather, the test is purely designed to add further elements
`to be considered when there are artful elements of useful
`articles. See id. at 417–19; 17 U.S.C. § 101.
`
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`14
`As Justice O’Connor observed, “copyright rewards
`originality, not effort” and “[w]ithout a doubt, the ‘sweat
`of the brow’ doctrine flouted basic copyright principles.”
`Feist Publications, Inc. v. Rural Tel. Serv. Co. , 499 U.S.
`340, 354, 364 (1991).
`Justice Holmes likewise explained that:
`It would be a dangerous undertaking for
`persons trained only to the law to constitute
`themselves final judges of the worth of pictorial
`illustrations, outside of the narrowest and most
`obvious limits. At the one extreme, some works
`of genius would be sure to miss appreciation.
`Their very novelty would make them repulsive
`until the public had learned the new language
`in which their author spoke. It may be more
`than doubted, for instance, whether the
`etchings of Goya or the paintings of Manet
`would have been sure of protection when seen
`for the first time. At the other end, copyright
`would be denied to pictures which appealed to a
`public less educated than the judge. Yet if they
`command the interest of any public, they have
`a commercial value,—it would be bold to say
`that they have not an aesthetic and educational
`value,—and the taste of any public is not to be
`treated with contempt. It is an ultimate fact
`for the moment, whatever may be our hopes
`for a change.
`Bleistein v. Donaldson Lithographing Co. , 188 U.S. 239,
`251–52 (1903) (emphasis added).
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`15
`Yet, in the case at bar, this is exactly what the
`Copyright Office is doing. It is placing a judgment on AI
`users, policing the methodology of generating creative
`works and explicitly denying copyright based solely on
`the manner in which a work was made.
`2. Unintentional and Unforeseen Result