DOJ files SCOTUS brief opposing Thaler's bid to overturn 'human-only' creation rule

On January 23, 2026, the Solicitor General filed a Brief in Opposition to certiorari in No. 25‑449, Thaler v. Perlmutter, from the D.C. Circuit. The Copyright Office had refused registration because the application identified no human author and described the work as created “autonomously by machine.” The district court granted summary judgment to the government and the D.C. Circuit affirmed, holding the Act requires human authorship; rehearing was denied in May 2025, and petitioner sought Supreme Court review in October 2025. 

Background 

Thaler applied to register “A Recent Entrance to Paradise,” identifying the “Creativity Machine” as the sole author and stating the image was “created autonomously by machine”. The Copyright Office refused registration for lack of human authorship; the Review Board affirmed, and the district court and D.C. Circuit upheld the refusal, with the court of appeals finding Thaler had waived arguments that he himself was the author based on his operation or direction of the system. 

The DOJ brief

The DOJ’s opposition brief argues that the Act’s text, structure, and precedent confirm that “author” means a human, citing provisions on vesting, term measured by human life, heirs, signatures, domicile/nationality, and joint works requiring intention, all inapplicable to machines. The brief invokes several authorities to underscore that copyright protects works reflecting human intellectual conception, distinguishing “merely mechanical” processes. The government also points to longstanding Office practice and guidance, including the Compendium, other guidance, and the 2025 AI Copyrightability Report, recognizing a human-authorship requirement while allowing protection for sufficient human contributions to AI-assisted works. The brief rejects work-for-hire and ownership-by-machine theories and emphasizes that Thaler’s own submissions disclaim human creative control, making this case a poor vehicle for broader questions about AI-assisted authorship.

Why this matters

Workflows should still be designed to capture and evidence human selection, arrangement, and other expressive choices, consistent with the Office’s established guidance and its case‑by‑case registration practice. Contracting cannot transform a nonhuman system into an “author,” so portfolio strategies should focus on protectable human contributions (including compilations/arrangements) and accurate registration disclosures distinguishing human and AI‑generated material. 

Bottom line

The Copyright Office is continuing case‑by‑case registration of AI‑assisted works where human authorship is evident,  rejecting attempts to treat AI as an “author” via work‑made‑for‑hire or device‑ownership theories. Pending any Supreme Court action, continue to treat AI as a tool and ensure a human exercises "ultimate creative control” over the expressive elements; and at the same time document human selection, arrangement, and other creative choices.