low flash
March 6, 2026
The U.S. Supreme Court has refused to consider the copyrightability of works of art generated purely autonomously by artificial intelligence, leaving in place the “human authorship requirement” for copyright protection. In this LawFlash, we detail this case, the legal and judicial framework governing copyright in autonomously created works, the Copyright Office’s stance, and the practical implications for companies dealing with copyright in the era of autonomous AI creation.
Important points
- supreme court[1] Refuses to review the first major lawsuit challenging the “human authorship requirement” for AI-generated works.
- The United States Copyright Office and federal courts require human copyright for copyright protection. Works created solely by AI are not eligible for registration under the current rules.
- Companies that leverage AI for creative output can only protect the copyright of AI works created when humans are fully involved in the direction, direction, and modification of the resulting work.
- Courts may continue to consider the copyrightability of AI works.
background
Computer scientist Dr. Stephen Thaler has developed an artificial intelligence system called “Creativity Machine” that can autonomously generate creative works. Saylor applied to the U.S. Copyright Office to register a copyright for “Recent Entrance to Paradise,” identifying the AI system as the author and stating that the work was created without human intervention.
The Copyright Office refused the registration, so[2] The bill was found to lack sufficient “human rights.” This requirement is rooted in long-standing policy rather than in the explicit text of the Constitution.[3] or copyright law.[4]
Thaler disputed this requirement, arguing that the copyright in works autonomously created by artificial intelligence should belong to the AI’s owner or programmer. District courts and the D.C. Circuit upheld the court’s decision, holding that U.S. copyright law “protects only works of human creation.”[5] And the Copyright Act “requires that all eligible works be originally authored by a human being.”[6]
A subsequent motion for reconsideration was denied, prompting Saylor to seek review from the Supreme Court. Mr. Saylor’s application for adjudication[7] It asked the court to consider “whether works output by an AI system without the direct, traditional authorial contribution of a natural person can be protected by copyright.”
The Supreme Court rejected the certification on March 2, 2026, leaving the Copyright Office and the D.C. Circuit refusing to register works created purely by AI. However, the court’s refusal to certify in this case does not preclude the court from considering human authorship requirements in future cases.
legal framework
Copyright law recognizes copyright in “an original work of copyright fixed in any tangible medium of expression,” and copyright initially vests in “the author or authors of the work.” The Copyright Office notes that legal provisions regarding copyright duration, transfer, and inheritance—all of which assume that human authors can sign legal documents and whose life and death determine the terms of their copyright—refuse the registration of works created autonomously by AI.
The Copyright Office’s policy guidance, the U.S. Copyright Office Compendium of Practice, specifies that “the Copyright Office will refuse to register a claim if it determines that the work was not created by a human being,” and cites examples of works that are not copyrightable, such as works “produced by nature, animals, or plants,” or “produced by machines or mere mechanical processes operating randomly or automatically, without the creative input or intervention of a human author.”[8]
In support of this policy, the Copyright Office states: Barrow Giles Lithographic Ltd. v. Saronyargued that photographs may be protected by copyright even if they are taken by a non-human mechanical device. In this case, the court focused on the photographer’s control over the lighting, positioning, and arrangement of the photograph, suggesting that human selection and arrangement are required for copyright to belong.[9]
Here, the Copyright Office refused registration because the artwork was created autonomously by an AI without any human creative contribution. As a result of judicial review, the court affirmed the Japan Patent Office’s position, stating that copyright applies only to works created by humans.
Legal interpretation and agency practice
Thaler argued that neither the Constitution nor copyright law explicitly requires human authorship.[10] He argued that the agency’s human authorship requirement is based on agency guidance rather than legal text, and that non-humans, particularly businesses, have been considered “indisputably the authors of copyrighted works for more than a century.” Thaler argued that while copyright law contains express prohibitions regarding copyrightable subject matter, it does not limit authorship to natural persons.
The Copyright Office countered that longstanding legislative history, agency practice, and case law consistently require human authors.[11] The agency distinguished between AI as a creative tool to assist humans and AI as a stand-in for human creativity, and emphasized that copyright protection is only available when humans exercise ultimate creative control. The agency said it has registered “hundreds” of works that incorporate AI when a human author was present and provided creative input.
Looking ahead
For now, companies and creators using AI must continue to rely on long-standing human copyright requirements. Under current law, works created solely by autonomous AI are not eligible for copyright protection in the United States. The ongoing litigation also considers the amount of human input, such as prompts and post-generation edits, required to register copyright in AI-generated works.[12]
Companies must ensure that humans make creative contributions and are named as authors in copyright applications for AI-assisted works. To maximize protection, organizations should review their creative workflows and document human involvement in AI-assisted projects, especially commercial content. Organizations should continue to document the timing and scope of their use of AI in copyrighted works, including by preserving prompts provided by authors. Internal policies should clarify attribution, ownership, the nature of creative input, and documentation requirements to avoid rejection of copyright applications.
how we can help
Our team of skilled intellectual property attorneys can review employee contracts and company policies regarding intellectual property rights and the use of AI to produce copyrighted works. The team closely tracks the latest court decisions and administrative guidance regarding copyright in AI works, including human authorship requirements, and is ready to help organizations avoid registration and enforcement pitfalls that can arise from the use of AI. We can assess your organization’s litigation risk and strategic positioning based on its current policies and minimize risk.
