No Human, No Copyright: The Human Authorship Barrier to Copyright

9:42 AM, 10/28/2025

Is human authorship required for copyright protection? An urgent question amidst the rise of artificial intelligence.

Stephen Thaler, a computer scientist, filed to register a work generated by one of his computer systems with the United States Copyright Office. His filing listed himself as the “Copyright Claimant”/owner and his AI model as the author. The Copyright Office denied his application, citing the requirement for human authorship to issue a valid copyright. Thaler asked the Copyright Office to reconsider: “. . . AI should be ‘acknowledge[d] . . . as an author where it otherwise meets authorship criteria, with any copyright ownership vesting in the AI’s owner.’” Following numerous rejections, Thaler filed suit in the United States District Court for the District of Columbia and claimed the denial was arbitrary and capricious.

The Copyright Act of 1976 grants “[c]opyright protection . . . in original works of authorship fixed in any tangible medium of expression . . . .” Thaler contends that copyright shifts with the times, referencing technologies that have eclipsed traditional writing media and, in turn, arguing that authorship must be expanded. The court agreed with this malleability argument; however, even as technological advancements emerge, human creativity remains central for copyright protection . “Human authorship is a bedrock requirement of copyright.” This is seen not only in the plain text of the Act, but also in the Constitution, granting Congress the authority to “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.” Accordingly, the district court affirmed the denial of Thaler’s copyright.

On appeal, Thaler’s denial was affirmed. Thus, in October 2025, Thaler filed a petition for a writ of certiorari. He asserts, “[T]he 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.” Thaler characterizes this case as of “paramount importance” due to the rapid rise of AI. He concludes, “[i]f 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.”

While AI holds national significance, courts are aligned on the need for human authorship.

When determining over which cases to preside, the Supreme Court usually examines if the suit has national significance, would harmonize conflicting court decisions, and/or would have precedential value. While AI holds national significance, courts are aligned on the need for human authorship. It is unlikely Thaler’s petition will be granted.

For many artists, AI has become one of the many tools in their toolbox. In October 2022, Senators asked the Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office to “jointly establish a national commission on AI.” The commission’s goal is to assess the role AI plays in innovation and determine what changes to existing law should be made to encourage the development of AI-generated creations.

While legislative pressure to reevaluate laws would seemingly encourage the Supreme Court to hear this case, the Court appears apathetic. In a previous case (from 2023) involving Thaler, the justices declined to hear his argument regarding the USPTO’s denial to issue patents for his AI’s inventions, tacitly affirming lower courts’ rulings that only human inventors could hold patents. Given this recent history, the Supreme Court likely will withstand pressure to hear cases involving similar issues.

As mentioned, lower courts have uniformly decided cases regarding copyrights without a human author. The Ninth Circuit explained, “[S]ome element of human creativity must have occurred” to be copyrightable. The Seventh Circuit denied copyright for a cultivated garden because it contested the basic principle of human authorship.

Finally, besides Thaler’s failed litigation from 2023, the Supreme Court has consistently recognized human authorship for copyrights. In one case, the Court affirmed a copyright for photography because it relied on the human’s use of the camera. In another, the Court defines “author” as “an originator.” Thus, the Supreme Court focuses on human creativity as the key to authorship. For the aforementioned reasons, the Supreme Court will most likely deny Thaler’s petition. 

Kiersten Bayha

Kiersten attended the University of South Carolina for college and majored in Sports and Entertainment Management. After graduation, Kiersten worked in the NFL for two years. In law school, Kiersten has been a member of SELA and Women in Law.