The Supreme Court has distributed the cert petition in Thaler v. Perlmutter for its upcoming conference in two weeks, on Feb. 27, 2026.
The Question Presented: “Whether works outputted by an artificial intelligence (AI) system without a direct, traditional authorial contribution by a natural person can be copyrighted.”
While many Supreme Court watchers might not give Thaler’s cert petition much, if any, chance of being granted, I now think the odds of a grant are good. Very good.
Indeed, I think they are better than even. And I’ll note SCOTUSblog, too, rates this case as one of its Cert Petitions to Watch, which generally means it has a “decent change of being granted.” Be that as it may, I’m sure many skeptics of the Thaler cert petition abound.
The D.C. Circuit’s Ruling in Thaler
Before explaining my reasons, I’ll provide a brief summary of the lower court’s and Copyright Office’s decisions: Avoiding the constitutional issue of the meaning of “Authors” in the Copyright Clause, the D.C. Circuit upheld the Copyright Office’s rejection of the copyright registration application filed by Stephen Thaler in which an AI program (called the Creativity Machine) that Thaler created was claimed to be the author of an autonomously generated AI visual work:
On statutory interpretation ground, the court agreed with the Copyright Office’s so-called “Human Authorship Requirement” that the Copyright Act requires a “human author” and that Thaler’s application for registration failed to meet it. (The D.C. Circuit expressly declined to consider the constitutional question whether Congress has the authority under the Copyright Clause to grant copyrights to non-human “Authors.”)
The D.C. Circuit distinguished non-human corporate “authors” under the work-made-for-hire provision in the Copyright Act:
Thaler‘s cert petition has a good chance of grant
Here are my reasons in believing Thaler‘s cert petition has a very good chance of being granted. I list them not necessarily in order of strength, but more as a combination of 5 factors.
1. Unlike in Thaler v. Vidal, THe Supreme Court asked SG to Reply
I think the first good sign for Thaler was that, unlike in the patent inventorship case Thaler v. Vidal, the Supreme Court did not let the cert petition go without any response from the U.S. government. In Vidal, the SG declined to file a reply to Thaler’s cert petition for inventorship (as is common where the SG thinks it’s unnecessary). The SG didn’t reply. And then, in short order, the Supreme Court denied cert in 2023.
But, now, 3 years later, in Thaler v. Perlmutter, after the SG didn’t reply to the cert petition, the Supreme Court asked for a reply from the SG. That shows interest, at the very least and more so than in Vidal in 2023.
2. Fundamental Question of Copyright Law that Has National Importance for industries and individuals alike
We are 3 years into the fast-developing generative AI era. The U.S. government has declared AI development a national priority.
Yet, the Supreme Court has stood on the sidelines, not taking any case involving AI so far. As Thaler’s and his amici briefs forcefully argue, the question of authorship in situations involving the use of AI is a question that has enormous national importance for industries and individuals alike.
Waiting for a circuit split may take years. A decision from the Supreme Court in 2030, for example, could be detrimentally late to clarifying the rights (if any) of people who use AI in creative endeavors–and deter many creators from using AI lest they lose their qualification as an author and receipt of copyright for their works.
3. The Supreme CouRt has a lot of room in the docket
So far, the Supreme Court has only 2 cert grants for the October Term 2026. And this follows a historically light Term with 59 arguments in 64 cases. Given all the room in the docket, why wouldn’t the Supreme Court pick a fascinating case raising a novel, fundamental question of law?
4. Phyllis Schlafly Eagles Filed an amicus brief in support of grant
Andrew Schlafly filed a forceful amicus brief on behalf of the conservative groups Phyllis Schlafly Eagles and Eagle Forum Education & Legal Defense.
The last time Eagle Forum filed an amicus brief in support of cert in a copyright case appears to be Eldred v. Ashcroft. And the Court did grant it there. (But, for other cert petitions in other areas Eagle Forum filed amicus briefs, the Court denied them.)
Here, Schlafly’s brief makes some pretty persuasive arguments in favor of cert (without taking a position on the question presented), such as:
From p. 3-4:
From p. 10:
5. The Copyright Office’s position raises Serious questions
At the cert petition stage, the question the Supreme Court faces is not on the merits. But, if there’s at least a question by the Supreme Court about the correctness or soundness of the legal standard used below, that will help at least avoiding a quick denial of cert.
Here, I think Thaler‘s cert petition has raised serious enough questions about the U.S. Copyright Office’s approach. Just read Thaler’s reply.
In the interest of full disclosure, I’ve written extensively in prior scholarship and an amicus brief in another case on why I believe the U.S. Copyright Office’s position, especially its requirement of authorship involving so-called “traditional elements of authorship,” is wrong. The SG invokes the same concept in its brief in Thaler. That concept is not in the Copyright Act. And no federal court has ever adopted it.
That alone raises questions. It adds another reason why I believe the novel, fundamental question of law presented by this case is likely to pique the Court’s interest.
A group of professors submitted an amici brief that forcefully questioned the U.S. Copyright Office’s approach:
Of course, it’s a bit of a fool’s errand to try to predict what the Supreme Court will do. That hasn’t stopped me before. And not today.