Opposition Brief — Stephen Thaler, Petitioner v. Shira Perlmutter, Register of Copyrights and Director of the United States Copyright Office, et al.

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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.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

D. JOHN SAUER

Solicitor General

Counsel of Record

BRETT A. SHUMATE

Assistant Attorney General

DANIEL TENNY

SONIA CARSON

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals correctly upheld the

identified.

(I)

TABLE OF CONTENTS

Page

Opinions below ................................................................................ 1

Jurisdiction ...................................................................................... 1

Statement ......................................................................................... 2

Argument ......................................................................................... 9

Conclusion ...................................................................................... 19

TABLE OF AUTHORITIES

Cases:

Bragdon v. Abbott, 524 U.S. 624 (1998) ............................. 13

Burrow-Giles Lithographic Co. v. Sarony,

111 U.S. 53 (1884) ................................................... 5, 6, 11, 12

Community for Creative Non-Violence v. Reid,

490 U.S. 730 (1989) ............................................................... 12

Cruz v. Cox Media Grp., LLC,

444 F. Supp. 3d 457 (E.D.N.Y. 2020) ................................. 17

Ets-Hokin v. Skyy Spirits, Inc.,

225 F.3d 1068 (9th Cir. 2000) .............................................. 16

Harney v. Sony Pictures Television, Inc.,

704 F.3d 173 (1st Cir. 2013) ................................................. 16

Kelley v. Chicago Park Dist., 635 F.3d 290 (7th Cir.),

cert. denied, 565 U.S. 934 (2011)......................................... 16

Mannion v. Coors Brewing Co.,

377 F. Supp. 2d 444 (S.D.N.Y. 2005) .................................. 17

Star Athletica, LLC v. Varsity Brands, Inc.,

580 U.S. 405 (2017) ......................................................... 15, 16

Taniguchi v. Kan Pacific Saipan, Ltd.,

566 U.S. 560 (2012) ............................................................... 11

Turkiye Halk Bankasi A.S. v. United States,

598 U.S. 264 (2023) ............................................................... 11

Urantia Found. v. Maaherra,

114 F.3d 955 (9th Cir. 1997) ................................................ 16

(III)

Constitution, statutes, and regulations:

Page

U.S. Const. Art. I, § 8, Cl. 8

(Intellectual Property Clause) ........................................ 2, 11

Act of May 31, 1790, ch. 15, § 1, 1 Stat. 124 ............................ 2

Administrative Procedure Act,

5 U.S.C. 701 et seq. ................................................................. 7

17 U.S.C. 101 et seq. .............................................. 2-4, 7, 9-13

17 U.S.C. 101 ...................................................... 3, 11, 13, 16

17 U.S.C. 102(a) ................................................................... 2

17 U.S.C. 104(a) ................................................................. 10

17 U.S.C. 106 ........................................................................ 2

17 U.S.C. 201(a) ............................................................. 2, 10

17 U.S.C. 201(b) ............................................................. 3, 13

17 U.S.C. 202 ...................................................................... 14

17 U.S.C. 203(a)(2) ............................................................ 10

17 U.S.C. 203(a)(2)(A) ....................................................... 10

17 U.S.C. 204(a) ................................................................. 10

17 U.S.C. 302(a) ............................................................. 2, 10

17 U.S.C. 302(b) ................................................................... 2

17 U.S.C. 302(c) ................................................................... 3

17 U.S.C. 304(a)(1)(C) ......................................................... 2

17 U.S.C. 304(a)(1)(C)(i) ..................................................... 2

17 U.S.C. 304(a)(1)(C)(ii) .................................................... 3

17 U.S.C. 304(a)(1)(C)(iii)–(iv) ........................................... 3

17 U.S.C. 408-412 ................................................................ 3

17 U.S.C. 408(a) ................................................................... 4

17 U.S.C. 410(a) ................................................................... 3

17 U.S.C. 410(b) ................................................................... 3

17 U.S.C. 410(c) ................................................................... 4

17 U.S.C. 411(a) ................................................................... 4

17 U.S.C. 412 ........................................................................ 4

Statutes and regulations—Continued:

Page

17 U.S.C. 504 ........................................................................ 4

17 U.S.C. 505 ........................................................................ 4

17 U.S.C. 701 ........................................................................ 3

17 U.S.C. 701(e) ................................................................... 4

17 U.S.C. 702 .................................................................... 3, 4

37 C.F.R.:

Section 202.3(a)(1) ............................................................... 4

Section 202.5(a) .................................................................... 4

Section 202.5(b) ................................................................... 4

Section 202.5(c) .................................................................... 4

Section 202.5(f ) .................................................................... 4

Section 202.5(g) ................................................................... 4

Miscellaneous:

86 Fed. Reg. 3205 (Jan. 14, 2021) ............................................ 4

88 Fed. Reg. 16,190 (Mar. 16, 2023) ........................ 5, 6, 15, 18

2 William F. Patry, Patry on Copyright (2010)................... 16

U.S. Copyright Office, Library of Cong.:

Compendium of Copyright Office Practices

(July 1, 1973), https://perma.cc/MH7KMSGZ............................................................................ 12

Compendium of U.S. Copyright Office Practices

(3d. ed. 2021), https://perma.cc/9N9N-C3VU ........ 4, 5

Part 2: Copyrightability (Jan. 2025),

https://perma.cc/4V92-M586 .................................. 6, 18

Sixty-Eighth Annual Report of the Register of

Copyrights for the Fiscal Year Ending

June 30, 1965 (1966), https://perma.cc/QU7PTY6N ............................................................................. 12

In the Supreme Court of the United States

No. 25-449

STEPHEN THALER, PETITIONER

SHIRA PERLMUTTER, REGISTER OF COPYRIGHTS AND

DIRECTOR OF THE UNITED STATES COPYRIGHT OFFICE,

ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-27a)

is reported at 130 F.4th 1039. The opinion of the district

court (Pet. App. 28a-46a) is reported at 687 F. Supp. 3d

140.

JURISDICTION

The judgment of the court of appeals was entered on

March 18, 2025. Petitions for rehearing were denied on

May 12, 2025 (Pet. App. 47a-50a). On July 23, 2025, the

Chief Justice extended the time within which to file a petition for a writ of certiorari to and including October 9,

2025, and the petition was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

1. a. The Intellectual Property Clause of the Constitution grants Congress the power “[t]o promote the

Progress of Science and useful Arts, by securing for

limited Times to Authors and Inventors the exclusive

Right to their respective Writings and Discoveries.”

U.S. Const. Art. I, § 8, Cl. 8. Congress has exercised that

power throughout the Nation’s history, with the first

Congress enacting legislation in 1790 to provide copyright protection to the “author or authors” of certain

works. Act of May 31, 1790, ch. 15, § 1, 1 Stat. 124, 124.

The current statute, the Copyright Act of 1976 (Copyright Act or Act), 17 U.S.C. 101 et seq., provides that

in any tangible medium of expression.” 17 U.S.C. 102(a).

“vests initially in the author or authors of the work,” 17

U.S.C. 201(a), and confers on the author certain “exclusive rights” in the work, such as the rights to copy the

work and to prepare derivative works, 17 U.S.C. 106.

Under the Act’s provisions regarding duration of copyright protection, the expiration of copyright generally

depends on the date of the author’s death. For works

created after 1977, copyright “endures for a term consisting of the life of the author and 70 years after the author’s death.” 17 U.S.C. 302(a). For a “joint work prepared by two or more authors,” copyright endures for

“the life of the last surviving author and 70 years after

such last surviving author’s death.” 17 U.S.C. 302(b). For

certain pre-1978 works, the Act permits a “renewal and

extension” of copyright protection. 17 U.S.C. 304(a)(1)(C).

The parties entitled to such an extension include “the author of such work, if the author is still living,” 17 U.S.C.

304(a)(1)(C)(i); “the widow, widower, or children of the author, if the author is not living,” 17 U.S.C. 304(a)(1)(C)(ii);

or, if the author died intestate, the “next of kin,” 17 U.S.C.

304(a)(1)(C)(iii) to (iv).

In certain circumstances, the Copyright Act also

provides for initial vesting of ownership in individuals

and entities that hire someone to create a work. The

Act refers to such a work as a “work made for hire,”

defined as “a work prepared by an employee within the

scope of his or her employment” or “a work specially

ordered or commissioned” for particular uses “if the

parties expressly agree in a written instrument signed

by them that the work shall be considered a work made

for hire.” 17 U.S.C. 101. If a work is made for hire, “the

employer or other person for whom the work was prepared is considered the author” by operation of law. 17

U.S.C. 201(b). The term of the copyright in such works

is not pegged to the author’s lifetime but instead lasts

“95 years from the year of its first publication, or a term

of 120 years from the year of its creation, whichever expires first.” 17 U.S.C. 302(c).

b. Copyright claimants may apply to register their

claims with the United States Copyright Office. See 17

U.S.C. 408-412, 701, 702. The Copyright Office determines whether the work “constitutes copyrightable subject matter” and whether “the other legal and formal

requirements of [the Copyright Act] have been met.” 17

U.S.C. 410(a). If the application meets those requirements, the Copyright Office registers the claim and provides the claimant with a certificate of registration. See

ibid. If the Copyright Office instead determines that the

work “does not constitute copyrightable subject matter or

that the claim is invalid for any other reason,” it “shall refuse registration.” 17 U.S.C. 410(b).

Although “registration is not a condition of copyright

protection,” 17 U.S.C. 408(a), it affords certain benefits

that copyright ownership alone does not. The owner of

a United States work generally may not sue for infringement in federal court unless the work has been

registered or the Copyright Office has refused registration. 17 U.S.C. 411(a). Registration before the infringement occurs may also be a prerequisite to certain monetary remedies, 17 U.S.C. 412, 504, 505, and a certificate

of registration can serve as prima facie evidence of copyright validity, 17 U.S.C. 410(c).

The Copyright Act also authorizes the Copyright Office to “establish regulations not inconsistent with law

for the administration of the functions and duties” assigned under Act. 17 U.S.C. 702. Under that authority,

the agency has promulgated regulations regarding

“conditions for the registration of copyright,” 37 C.F.R.

202.3(a)(1), and the process by which applicants may

seek “administrative review” of a decision to refuse registration, 37 C.F.R. 202.5(a). A party whose application

has been refused may seek “[f]irst reconsideration” from

the Copyright Office’s Registration Program, 37 C.F.R.

202.5(b), and a further “[s]econd reconsideration” from

the Copyright Office’s Review Board. 37 C.F.R. 202.5(c)

and (f ). The Review Board’s decision on second reconsideration “constitutes final agency action.” 37 C.F.R.

202.5(g); see 17 U.S.C. 701(e).

The Copyright Office also issues guidance concerning

the registration process and its requirements, including in

the Compendium of Copyright Office Practices. See, e.g.,

U.S. Copyright Office, Library of Cong., Compendium of

U.S. Copyright Office Practices (3d. ed. 2021), https://

perma.cc/9N9N-C3VU (Compendium (Third)); see also

86 Fed. Reg. 3205 (Jan. 14, 2021). The Compendium

reflects the agency’s longstanding view that copyright

requires human authorship and states that the Copyright Office “will refuse to register a claim if it determines that a human being did not create the work.”

Compendium (Third) § 306; see id. § 313.2 (“To qualify

as a work of ‘authorship’ a work must be created by a

human being. Works that do not satisfy this requirement

are not copyrightable.”) (citing Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884)). The Compendium offers examples of works lacking the requisite

human authorship, including “works produced by nature, animals, or plants” and “works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.” Id. § 313.2.

The Copyright Office has reiterated those principles

in published guidance that specifically addresses works

containing material generated by artificial intelligence

(AI). In guidance regarding registration of works created

using AI, the Office explains that AI can be a creative tool

like many others at an artist’s disposal—such as guitar

pedals in sound recordings or cameras in photography.

See 88 Fed. Reg. 16,190, 16,193 (Mar. 16, 2023). Consistent with the Copyright Office’s longstanding approach, the agency thus “will consider whether the AI

contributions are the result of ‘mechanical reproduction’

or instead of an author’s ‘own original mental conception,

to which the author gave visible form.’ ” Id. at 16,192

(brackets omitted) (quoting Sarony, 111 U.S. at 60). Under the guidance, if “a work’s traditional elements of authorship were produced by a machine” and a human user

“d[id] not exercise ultimate creative control,” then “the

work lacks human authorship” and the Copyright Office

“will not register it.” Ibid. But a “work containing AI-

generated material [could] also contain sufficient human

authorship to support a copyright claim,” such as when a

human “select[s] or arrange[s] AI-generated material”

in a creative way. Ibid. “In each case,” the agency has

explained, “what matters is the extent to which the human had creative control over the work’s expression.”

Id. at 16,193.

The Office’s report on the copyrightability of material

created using generative AI similarly affirms that

“[c]opyright does not extend to purely AI-generated material, or material where there is insufficient human control over the expressive elements.” U.S. Copyright Office,

Library of Cong., Copyright and Artificial Intelligence—

Part 2: Copyrightability iii (Jan. 2025), https://perma.cc/

4V92-M586 (AI Report); see id. at 7-11. Recognizing the

“important distinction between using AI as a tool to assist in the creation of works and using AI as a stand-in

for human creativity,” id. at 12, the report explains that,

based on then-current technology, “prompts alone do

not provide sufficient human control to make users of

an AI system the authors of the output,” id. at 18.

2. Petitioner is a computer scientist who creates and

works with AI systems. Pet. App. 6a. He invented an AI

system known as the Creativity Machine and thereafter

submitted to the Copyright Office a copyright registration application for an image titled “A Recent Entrance

to Paradise.” Id. at 7a (citation omitted). Petitioner’s

registration application stated that the image was

“[c]reated autonomously by machine,” and the application identified the “Creativity Machine” as the image’s

author. Ibid. (citation omitted).

The Copyright Office refused registration because “a

human being did not create the work.” Pet. App. 7a (citation omitted). Petitioner sought first reconsideration

through the Copyright Office’s Registration Program.

Ibid. In seeking reconsideration, petitioner confirmed

that the image “was autonomously generated by AI,”

but argued that the requirement of human authorship

is unconstitutional and “unsupported by either statute

or case law.” Ibid. (citation omitted). The agency upheld

the decision to refuse registration on the ground that

the image lacked “sufficient creative input or intervention from a human author.” Id. at 8a (citation omitted).

Petitioner sought second reconsideration from the

Review Board on the same grounds as in his first request. Pet. App. 8a. The Review Board upheld the refusal to register, relying upon petitioner’s “representation that the [w]ork was autonomously created by artificial intelligence without any creative contribution from a

human actor.” Ibid. (citation omitted). The Board also

rejected petitioner’s argument that the image was a

work made for hire, citing the lack of a contract between

petitioner and the Creativity Machine. Ibid.

Petitioner then sued the Copyright Office and the

Register of Copyrights under the Administrative Procedure Act, 5 U.S.C. 701 et seq., alleging that the Copyright Office’s refusal to register his claim was unlawful.

See Pet. App. 7a-8a.

3. The district court entered summary judgment for

the government. Pet. App. 28a-46a. The court held that

the Copyright Act “protects only works of human creation.” Id. at 36a. The court explained that “human creativity is the sine qua non at the core of copyrightability, even as that human creativity is channeled through

new tools or into new media.” Id. at 37a. The court further explained that, while copyright law can reach

works created with the use of new tools and technolo-

gies, copyright law “has never stretched so far” as to do

so “absent any guiding human hand.” Id. at 38a.

In this case, the district court observed that petitioner’s submission to the Copyright Office had described the work for which he sought registration as an

image “generated autonomously by a computer.” Pet.

App. 35a. The court rejected petitioner’s “attempts to

transform the issue presented here, by asserting new

facts * * * implying that he played a controlling role in

generating the work” through creating, instructing, or

operating the Creativity Machine. Id. at 44a. The court

explained that those “statements directly contradict the

administrative record” designed by petitioner “from the

outset of his application for copyright registration,”

where “his claim to the copyright was only based on the

fact of his ‘ownership of the machine.’ ” Ibid. (brackets

and citation omitted).

4. The court of appeals affirmed. Pet. App. 1a-27a.

The court held that, to obtain protection under the Copyright Act, a work must “be authored in the first instance by a human being.” Id. at 10a. In support of that

conclusion, the court cited “[n]umerous” statutory provisions that “both identify authors as human beings and

define ‘machines’ as tools used by humans in the creative process rather than as creators themselves.” Id. at

11a. Those provisions “make sense,” the court explained, “only if an author is a human being.” Ibid.; see

id. at 11a-15a (discussing the Act’s provisions about

ownership, copyright duration, inheritance, required

signatures, nationality or domicile, and intention in creating a work). Petitioner’s application for copyright

registration, however, had “listed the Creativity Machine as the work’s sole author, even though the Creativity Machine is not a human being.” Id. at 10a. The

court concluded that, “[a]s a result, the Copyright Office appropriately denied [petitioner’s] application” for

The court of appeals emphasized that “adhering to

the human-authorship requirement does not impede the

protection of works made with artificial intelligence,”

because copyright protection for an AI-assisted work

remains potentially available so long as the “author of

that work [is] a human being—the person who created,

operated, or used artificial intelligence—and not the

machine itself.” Pet. App. 21a; see id. at 21a-24a. On

appeal, petitioner had “argue[d] that he is the work’s

author because he made and used the Creativity Machine.” Id. at 26a. The court of appeals declined to address that argument. Ibid. The court explained that

“[t]he district court held that [petitioner] forwent any

such argument before the Copyright Office,” and that

petitioner’s opening brief in the court of appeals “did

not challenge the district court’s finding of waiver.”

Ibid.; see id. at 27a.

5. The court of appeals denied petitions for panel rehearing and rehearing en banc. Pet. App. 47a-50a.

ARGUMENT

Petitioner contends (Pet. 11-30) that copyright protection under the Copyright Act does not require human authorship. The court of appeals correctly rejected

that contention, and its decision does not conflict with

any decision of this Court or another court of appeals.

The petition for a writ of certiorari should be denied. 1

Petitioner previously raised similar arguments in the patent

context when he filed a petition for a writ of certiorari that presented the question whether an AI system may qualify as an inventor. See Thaler v. Vidal, No. 22-919 (filed Mar. 17, 2023). This Court

1. The court of appeals correctly held that, under

the Copyright Act, only a human being can be the “author” of a copyrightable work. The court correctly upheld the refusal of petitioner’s application for copyright

registration, based on petitioner’s own representations

to the Copyright Office that the image at issue here had

no human author.

a. Although the Copyright Act does not define the

term “author,” multiple provisions of the Act make clear

that the term refers to a human rather than a machine.

Pet. App. 10a-18a.

• Copyright “vests initially in the author.” 17

U.S.C. 201(a). But a machine “cannot own

property” and therefore cannot properly “be

an author under the statute.” Pet. App. 11a.

• Copyright generally “endures for a term consisting of the life of the author and 70 years after the author’s death.” 17 U.S.C. 302(a). But

“machines do not have ‘lives’ nor is the length

of their operability generally measured in the

same terms as human life.” Pet. App. 12a.

• When an author dies, the “termination interest” in the copyright “is owned, and may be exercised,” by the author’s “widow or widower,”

or by the author’s “surviving children or grandchildren.” 17 U.S.C. 203(a)(2) and (A). But machines “have no surviving spouses or heirs.”

Pet. App. 12a.

• When transferring copyright ownership, the

owner must “sign[]” an “instrument of conveyance.” 17 U.S.C. 204(a). But machines do not

have signatures or the “legal capacity to prodenied the petition for a writ of certiorari in that case. 143 S. Ct.

1783 (2023).

vide an authenticating signature.” Pet. App.

12a.

• Unpublished works are protected “without regard to the nationality or domicile of the author.” 17 U.S.C. 104(a). But machines “do not

have domiciles, nor do they have a national

identity.” Pet. App. 13a.

• A work qualifies as a “joint work” if it is “prepared by two or more authors with the intention that their contributions be merged into

separable or independent parts of a unitary

whole.” 17 U.S.C. 101. But machines “do not

intend anything.” Pet. App. 13a.

Reading the term in that “context” and “with a view to

[the term’s] place in the overall statutory scheme,”

Turkiye Halk Bankasi A.S. v. United States, 598 U.S.

264, 275 (2023) (citation omitted), an “author” is a human, for purposes of the Copyright Act.

This Court’s precedent underscores that the ordinary meaning of “author” in the copyright context refers

to a human creator, not to a machine. Cf. Taniguchi v.

Kan Pacific Saipan, Ltd., 566 U.S. 560, 566 (2012) (“When

a term goes undefined in a statute, we give the term its

ordinary meaning.”). In Burrow-Giles Lithographic Co.

v. Sarony, 111 U.S. 53 (1884), this Court held that Congress’s power to enact legislation protecting the “Writings” of “Authors,” U.S. Const. Art. I, § 8, Cl. 8, allowed

it to extend copyright protection to photographs, see

111 U.S. at 58. The Court viewed the Intellectual Property Clause as “broad enough to cover an act authorizing copyright of photographs,” at least insofar as the

photographs are the “representatives of original intellectual conceptions of the author.” Ibid. And the Court

contrasted “an original work of art” that is “the product

of [the photographer’s] intellectual invention, of which

plaintiff is the author,” with the “merely mechanical”

use of a device lacking “novelty, invention, or originality.” Id. at 60. Because the photograph at issue in Burrow-Giles was “the product of ” the photographer’s “intellectual invention,” the Court deemed it “an original

work of art[] * * * of which [the photographer] is the author.” Ibid.; see Community for Creative Non-Violence

v. Reid, 490 U.S. 730, 737 (1989) (recognizing that, “[a]s a

general rule, the author is the party who actually creates the work, that is, the person who translates an idea

into a fixed, tangible expression entitled to copyright

protection”).

Longstanding agency practice provides further support for that understanding. Indeed, the Copyright Office

has consistently recognized the human-authorship requirement in accordance with legal standards that predate the Copyright Act of 1976. In the agency’s annual

report published in 1966, the Copyright Office explained

that “[t]he crucial question” for works created with “computer technology” is “whether the ‘work’ is basically one

of human authorship.” U.S. Copyright Office, Library of

Cong., Sixty-Eighth Annual Report of the Register of

Copyrights for the Fiscal Year Ending June 30, 1965 at 5

(1966), https://perma.cc/QU7P-TY6N. A work could

qualify under that understanding if “the computer

merely [was] an assisting instrument,” but the work

would be ineligible if “the traditional elements of authorship in the work * * * were actually conceived and

executed not by man but by a machine.” Ibid. Similarly,

in the first edition of the Compendium of Copyright Office Practices, the agency stated that “it is not possible

to claim copyright in” materials that do not “owe their

origin to a human agent.” U.S. Copyright Office, Library

of Cong., Compendium of Copyright Office Practices §

2.8.3(I)(a)(1)(b) (July 1973), https://perma.cc/MH7KMSGZ.

Thus, “at the time the Copyright Act was passed and

for at least a decade before, computers were not considered to be capable of acting as authors.” Pet. App. 17a.

In light of that established understanding, the proper inference is that Congress intended the concept of authorship “to be construed in accordance with pre-existing

regulatory interpretations.” Bragdon v. Abbott, 524 U.S.

624, 631 (1998).

b. Petitioner’s contrary arguments lack merit.

Petitioner fails to grapple with the court of appeals’

statutory analysis. Instead, he contends that the Copyright Act does not expressly include any “human restriction or requirement.” Pet. 18. And he asserts (Pet.

18-21) that the Copyright Act contemplates nonhuman

authors through its definition of a “work made for hire.”

A work made for hire is defined as “a work prepared by

an employee within the scope of his or her employment,” or “a work specially ordered or commissioned”

for particular uses “if the parties expressly agree in a

written instrument signed by them that the work shall

be considered a work made for hire.” 17 U.S.C. 101.

The Act provides that, “[i]n the case of a work made for

hire, the employer or other person for whom the work

was prepared is considered the author for purposes” of

Title 17. 17 U.S.C. 201(b).

As the court of appeals recognized, that provision allows corporations and governments to be “legally recognized as authors.” Pet. App. 19a. But Congress did

not use “the word ‘author’ by itself to cover non-human

entities.” Id. at 19a-20a. Rather, “the word ‘considered’

in the work-made-for-hire provision does the critical

work.” Id. at 19a. It allows for a copyright that would

otherwise vest in the human creator to instead “transfer

instantaneously, as a matter of law, to the person who

hired the creator.” Ibid. And the prerequisites for a

work-made-for-hire relationship—entering into an employment relationship or executing a written agreement

regarding the particular work—cannot be undertaken

by a nonhuman creator. For that reason, petitioner is

also wrong in arguing (Pet. 21-22) that the image at issue here qualifies as a work made for hire. See Pet.

App. 45a & n.3.

Petitioner fares no better in asserting (Pet. 22-25),

as an alternative theory, that he is entitled to ownership

of copyright in the image based on his ownership of the

AI machine itself. The courts below held that petitioner

had failed to preserve that argument, see Pet. App. 26a27a, 36a n.1, and petitioner identifies no reason to question those holdings. In any event, while petitioner’s

ownership of the Creativity Machine might support a

claim of ownership of any physical copies of the images

that the Machine creates (see Pet. 24), it does not imply

ownership of any copyright in those images. See 17

U.S.C. 202 (“Ownership of a copyright * * * is distinct

from ownership of any material object in which the work

is embodied.”). Resolution of that question instead

turns on whether petitioner is the “author” of those images. With respect to the image at issue in this case,

petitioner’s submissions to the Copyright Office disavowed any contention that petitioner had exercised the

degree of creativity needed for “author” status, and

they identified the Creativity Machine itself as the image’s “author.” See pp. 6-7, supra.

Petitioner is likewise wrong to contend that the Copyright Office refused his registration application be-

cause it “believes human beings are not responsible for

creative choices when AI is used or because it believes

the use of AI involves randomness.” Pet. 15; see Pet.

15-16. The Copyright Office does not treat the use of

AI, as part of a human’s creative process, as precluding

the possibility of copyright protection. See pp. 5-6, supra. Instead, in assessing a work made using AI, the

88 Fed. Reg. at 16,193. In this case, however, petitioner

expressly disavowed any participation or creative control over the work and instead asked the Copyright Office to recognize the AI machine itself as the work’s “author.” That was the basis for the Copyright Office’s refusal to register his claim and for the decisions of the

courts below. See Pet. App. 22a, 38a. This case thus

does not implicate questions about the nature or extent

of the human contribution that is necessary to register

a copyright in a work created using AI tools.

2. The court of appeals’ decision does not conflict

with any decision of this Court or another court of appeals.

a. Petitioner asserts (Pet. 15) that, by requiring human authorship, the Copyright Office is impermissibly

“policing the methodology of generating creative

works” in a manner that is inconsistent with this Court’s

decision in Star Athletica, LLC v. Varsity Brands, Inc.,

580 U.S. 405 (2017). See Pet. 13-15. There is no such

inconsistency. In Star Athletica, the Court discussed

the analysis that should be used to determine whether

“a feature incorporated into a useful article ‘can be identified separately from’ and is ‘capable of existing independently of ’ ‘the utilitarian aspects’ of the article,”

such that the feature is potentially copyrightable under

Section 101 as part of the “design of a useful article.”

580 U.S. at 413. The Court held that “evidence of the

creator’s design methods, purposes, and reasons” is irrelevant to that statutory inquiry, and that the analysis

instead “is limited to how the article and feature are

perceived, not how or why they were designed.” Id. at

422-423. That holding is irrelevant to the question

whether the statutory term “author” can include a machine.

b. Petitioner has not identified any court of appeals

that has reached his desired result. In fact, courts of

appeals have repeatedly rejected efforts to obtain copyright in works allegedly authored by nonhumans. See,

e.g., Kelley v. Chicago Park Dist., 635 F.3d 290, 304 (7th

Cir. 2011) (explaining that “ ‘authorship is an entirely

human endeavor’ ” and that “[a]uthors of copyrightable

works must be human”) (quoting 2 William F. Patry,

934 (2011); Urantia Found. v. Maaherra, 114 F.3d 955,

958 (9th Cir. 1997) (explaining that, for a work to be

“copyrightable,” “some element of human creativity

must have occurred,” and rejecting the contention that

Petitioner contends (Pet. 16-18) that the court of appeals’ reasoning is inconsistent with that of courts that

have permitted copyright registration for photographs.

That is incorrect. None of the cases petitioner cites involved an attempt to register a work for which a camera

itself was identified as the work’s sole “author.” See

Harney v. Sony Pictures Television, Inc., 704 F.3d 173,

181-182 (1st Cir. 2013) (finding it “undisputed[]” that

the photographer had “produced an original, expressive

work”); Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068,

1076 (9th Cir. 2000) (holding that the photographer had

made decisions about “lighting, shading, angle, background, and so forth,” such that the images were “sufficiently creative, and thus sufficiently original, to merit

377 F. Supp. 2d 444, 452-453 (S.D.N.Y. 2005) (explaining

that “a person may create a worthwhile photograph by

being at the right place at the right time”); Cruz v. Cox

Media Grp., LLC, 444 F. Supp. 3d 457, 465 (E.D.N.Y.

2020) (finding sufficient creativity in a photograph taken

by amateur photographer). Here, by contrast, petitioner has identified the Creativity Machine itself as the

relevant “author,” based on petitioner’s representation

that the image in question “was autonomously created by

artificial intelligence without any creative contribution

from a human actor.” Pet. App. 8a (citation omitted).

3. Petitioner asserts (Pet. 25, 29-30) that this case

warrants the Court’s review because the refusal of his

application “discourage[s] investment in a critically new

and important developing field” and “eliminat[es] any

incentive whatsoever” “to develop and use creative AI

to generate and disseminate socially valuable goods.”

See Pet. 25-34. That assertion vastly overstates the significance of this case and the breadth of the court of appeals’ ruling.

Because petitioner’s own application for copyright

registration represented that the image was created

“autonomously by machine,” Pet. App. 7a, this case presents only the question whether an AI machine can itself be treated as the “author” of a copyrightable work.

It does not present any broader question about the eligibility for copyright registration of works created using AI. The Copyright Office does not refuse to register

works based solely on a human author’s use of AI or

other technological tools. See 88 Fed. Reg. at 16,192.

On the contrary, between March 2023 and January

2025, the Copyright Office “registered hundreds of

works that incorporate AI-generated material.” AI Report 3. That number has continued to grow, with the

as to whether human contributions to AI-generated outputs are sufficient to constitute authorship. Id. at 41.

In this case, however, petitioner expressly disavowed making the sort of contribution that the Copyright Office has previously found sufficient, instead representing that the image he sought to register involved

no “creative contribution from a human actor” at all.

Pet. App. 8a. The court of appeals correctly resolved

the narrow question that petitioner’s application presented, without addressing any broader issue concerning the circumstances in which a human user of AI technology can qualify as the “author” of an AI-assisted

work. The decision below accordingly does not warrant

further review. 2

Contrary to the letter that petitioner submitted, there is no need

to hold this case pending consideration of Blanche v. Perlmutter,

No. 25A478, or Trump v. Slaughter, No. 25-332 (argued Dec. 8,

2025). The Review Board issued its final decision concerning the

refusal of petitioner’s application for copyright registration years

before either of those cases arose. See C.A. App. 71-77 (Review

Board’s denial of petitioner’s Second Request for Reconsideration,

dated February 14, 2022). The ultimate disposition of those cases

will have no bearing on the propriety of that decision.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

BRETT A. SHUMATE

Assistant Attorney General

DANIEL TENNY

SONIA CARSON

Attorneys

JANUARY 2026

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.