The Background
In 2018, Dr Stephen Thaler, a computer scientist based in Missouri, did something that seemed straightforward enough: he applied to register a copyright in a piece of visual art. The artwork was titled A Recent Entrance to Paradise, an image of railway tracks leading into a tunnel of light and foliage. It is an evocative, striking piece.
The catch was this: Thaler did not create it. His AI system did. And when he submitted the copyright application, he named the AI, a system he called the Creativity Machine, as the sole author, stating explicitly that no human had been involved in its creation.
The US Copyright Office denied the registration, finding that the work lacked sufficient human authorship, a requirement rooted in longstanding policy rather than in the explicit language of the Copyright Act itself. Thaler appealed. Then appealed again. Then again.
On 2 March 2026, the US Supreme Court drew a line under the matter, at least for now.
What Happened at the Supreme Court?
The Supreme Court denied certiorari without comment, leaving in place a decision by the United States Court of Appeals for the District of Columbia Circuit, which held that copyright protection under US law requires human authorship.
A denial of certiorari is not the same as the Supreme Court agreeing with the lower court’s reasoning. The Court does not explain why it declines to hear a case, it simply refuses. But the practical effect is significant. The Court’s refusal effectively closes the book, at least for now, on Thaler’s years-long campaign to secure intellectual property rights for the output of his AI systems.
The precise question Thaler had asked the Court to consider was whether works outputted by an AI system without a direct, traditional authorial contribution by a natural person can be copyrighted. The Court’s silence on the matter leaves that question formally unanswered at the highest level, even as the practical answer, for now, is a firm no.
What Was Thaler’s Argument?
Thaler contended that neither the Constitution nor the Copyright Act expressly require human authorship. He argued that the Copyright Office’s human authorship requirement is grounded in agency guidance rather than statutory text, and pointed out that nonhumans, specifically corporations, have been considered authors of copyrighted works without controversy for over a century.
It is not an unreasonable argument. Copyright law has long accommodated the idea that the person who creates a work and the person who owns the copyright in it need not be the same. Works made for hire, for instance, vest copyright in an employer rather than the individual who did the creative work. Thaler’s position was, in essence, that the law was flexible enough to extend that logic to AI.
The courts disagreed. The DC Circuit relied heavily on the statutory structure of the Copyright Act, noting that concepts such as ownership, duration, inheritance, and intent all presuppose a human author. The Copyright Office distinguished sharply between AI as a creative tool assisting a human, and AI as a stand-in for human creativity, emphasising that copyright protection is only available where a human exercises ultimate creative control.
The Patent Parallel
The copyright case did not exist in isolation. Thaler’s copyright battle closely parallels his patent case. He filed two patent applications listing DABUS, a separate AI system he developed as the sole inventor. The USPTO refused both applications, concluding that the Patent Act limits inventorship to natural persons. That decision was affirmed by the US Court of Appeals for the Federal Circuit.
The USPTO reinforced that position in its revised inventorship guidance published in November 2025, clarifying that while AI cannot itself be named as an inventor, human inventors may still use AI-powered tools in the inventive process and obtain patent protection for the resulting work.
Taken together, the copyright and patent decisions present a consistent picture: under current US law, intellectual property rights require a human being somewhere in the creative or inventive chain. AI can assist. It cannot own.
What Does This Mean in Practice?
The immediate practical message is clear enough for anyone working with AI-generated content: practitioners need to thoroughly document meaningful human creative contribution when seeking copyright protection for AI-related works. The more human involvement that can be demonstrated, in prompting, selecting, editing, arranging, the stronger the case for protection.
But the deeper question remains stubbornly open. Neither the Copyright Office, the USPTO, nor any court has yet provided a clear answer on precisely how much human contribution is required. Is a carefully crafted prompt enough? What about selecting the best output from dozens of AI-generated options? What about adding a single brushstroke to an otherwise AI-created image? No bright line has been drawn.
Any changes to this framework will now likely require action from Congress, shifting the ongoing debate over AI copyright authorship from the courts to the legislative arena. Given the pace at which AI is developing, that debate cannot be deferred indefinitely.
The UK Picture
The Thaler litigation is an American story, but the questions it raises are universal. In the UK, the position is, unusually, slightly more nuanced. Section 9(3) of the Copyright, Designs and Patents Act 1988 makes specific provision for computer-generated works, stating that the author of such a work shall be taken to be the person who undertakes the arrangements necessary for its creation. This means that purely AI-generated works may, in theory, attract copyright protection in the UK, with ownership vesting in the person who set up and ran the AI system.
Whether that provision was ever designed to cover the kind of sophisticated generative AI that now exists is another question entirely, and one that the UK courts have not yet been asked to answer directly. The government’s recent decision not to legislate on AI and copyright in the immediate term, as covered in our previous Tech Tuesday, leaves that ambiguity firmly in place.
Technology Tuesday Takeaway
The Supreme Court’s refusal to hear the Thaler case is not the final word on AI and copyright, it is simply a decision to say nothing, for now. The law as it stands is clear: no human, no copyright. But the question of how much human involvement is enough, and whether legislation should step in to modernise a framework built long before generative AI existed, is one that courts and lawmakers on both sides of the Atlantic will be forced to confront. The Creativity Machine may have lost this round. The debate it sparked is far from over.
Written by Phoebe De Oliveira Simões
23 June 2026