America’s highest court is being urged to take on a case that tests the boundary between human authorship and automation. In a newly-filed petition for certiorari, computer scientist Stephen Thaler has asked the U.S. Supreme Court to decide whether “A Recent Entrance to Paradise” – a two-dimensional image that was autonomously generated by his AI model called the “Creativity Machine” – can receive copyright protection or whether it falls short due to a lack of human authorship.
The Background in Brief: Thaler sought to register “A Recent Entrance to Paradise” in 2018, expressly disclosing that the image was “autonomously created by a computer algorithm.” The Copyright Office refused the application on the basis that the work lacked the requisite human authorship, later reiterating that it viewed the image as generated by AI “without any creative contribution from a human actor.” Thaler challenged the refusal, but the district court and then the D.C. Circuit sided with the Copyright Office.
>> The question presented: “Whether works outputted by an AI system without a direct, traditional authorial contribution by a natural person can be copyrighted.”
Thaler’s Pitch to the Court
In his October 9 petition, Thaler maintains that the Copyright Office’s “human authorship” rule is not in the statute, which protects “original works of authorship” without specifying that the author must be a natural person. He points to work-for-hire as evidence that Congress can deem a corporate entity the “author” of a creative work. (It is worth noting, of course, that works-for-hire generally presume human creators somewhere in the chain.) Thaler also argues the Office is policing methods of creation, which the Supreme Court has cautioned against. Citing Star Athletica, he contends copyrightability should turn on the work, itself, not on officials parsing tools, purposes, or processes.
If authorship exists, Thaler proposes two paths to ownership. First, by analogy to work-for-hire – the AI as an “employee” under common-law agency, with Thaler directing it as owner, programmer, and operator. Second, accession – the principle that outputs of a machine belong to the machine’s owner. Framing the stakes constitutionally, he argues that excluding AI-generated works chills creation and runs counter to the Copyright Clause’s goal of promoting progress. Calling this a “clean vehicle” at a moment of peak economic and artistic relevance, he urges the Court to grant review.
Characterizing the case as “a clean vehicle, as it purely presents the question of whether a work generated using AI can be owned, and because it comes at a time where the question has never been more economically and artistically relevant,” Thaler argues that the petition should be granted.
THE BIGGER PICTURE: Not limited to traditional artworks, the case carries broad implications given that gen-AI is already embedded in retail’s day-to-day creative engine – from product copy and campaign concepts to lookbooks, window schemes, and email/SMS assets – and the copyright status of those outputs goes directly to control. If an asset is protectable, reuse, syndication, and licensing can be governed; if it is not, competitors and aggregators can often repurpose it with fewer legal hurdles.
The same tension appears in imagery and immersive tech: AI-assisted packshots, on-model renders, and virtual try-ons now anchor product discovery, but if “pure” AI outputs are uncopyrightable, exclusivity in brand-defining visuals may erode unless a human contribution clearly rises to authorship.
Design work is equally exposed. Surface prints, graphics, packaging art, and in-store signage created by – or heavily reliant on – AI may fall into ownership gaps under a strict human-authorship rule; conversely, if Thaler’s position prevails, those same assets could become protectable IP that can be registered, licensed, and enforced. Finally, retail content moves through complex supply chains – agencies, SaaS platforms, marketplaces, and freelancers – where the authorship rule effectively decides who owns what, whether indemnities are meaningful, and how affiliates and third-party sellers are policed.
In short, the outcome will shape not just creative workflows but the entire commercial life cycle of retail content, from production and rights clearance to enforcement and monetization.
The case is Stephen Thaler v. Shira Perlmutter, et al., 1:22-cv-01564 (DDC).
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