Stephen Thaler’s Legendary AI Copyright Losing Streak Ends With Nowhere Left To Appeal

from the public-domain-ftw dept

We’ve been covering Stephen Thaler’s quixotic quest to get copyright (and patent) protection for works generated entirely by his AI system “DABUS” for years now. If there’s one thing Thaler has proved beyond all reasonable doubt, it’s that you can be comprehensively, thoroughly, and repeatedly wrong at every level of the American legal system and still keep going. He loses everywhere, every time, at every level. The Copyright Office rejected him. A federal district court rejected him. The DC Circuit rejected him. The Patent Office rejected him. Courts rejected his parallel patent claims. Even the Trump administration—not exactly known for its nuanced intellectual property positions—told the Supreme Court not to bother hearing his appeal.

And now, the Supreme Court has declined to take up the case, putting the final period on what has been one of the most impressive losing streaks in recent IP law history.

Plaintiff Stephen Thaler had appealed to the justices after lower courts upheld a U.S. Copyright Office decision that the AI-crafted visual art at issue in the case was ineligible for copyright protection because it did not have a human creator.

That was always the fatal flaw with his argument. He wasn’t making the more nuanced claim that a human who uses AI as a tool should get some copyright protection. He was making the maximalist claim: the AI did it all by itself, and it (or rather, he, as the AI’s owner) should get the copyright anyway.

The image in question—”A Recent Entrance to Paradise,” of train tracks entering a portal surrounded by green and purple plant-like imagery—was, according to Thaler, created entirely by DABUS with no human creative input. Every single institution that looked at this said no.

A federal judge in Washington upheld the office’s decision in Thaler’s case in 2023, writing that human authorship is a “bedrock requirement of copyright.” The U.S. Court of Appeals for the District of Columbia Circuit affirmed the ruling in 2025.

Thaler’s lawyers, for their part, tried to argue that the stakes were too high for the Court to sit this one out:

With a refusal by the court to hear the appeal, Thaler’s lawyers said, “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.”

That’s rich. The Copyright Office is already working through the genuinely harder questions in cases involving tools like Midjourney—cases where humans actually did have meaningful creative input. Those cases are moving through the system right now. The problem for Thaler is that he chose the worst possible vehicle to force a Supreme Court showdown: a case so maximalist in its claims (the AI did everything, humans did nothing, give us the copyright anyway) that courts could rule against him on the narrowest possible grounds without ever having to engage with the nuanced questions at all. His all-or-nothing bet made this an easy case.

Still, the question of what happens when a human uses AI as a creative tool—rather than letting the machine do everything—isn’t actually as novel or unsettled as many people seem to think.

Copyright law has required human creative choices since at least Burrow-Giles Lithographic Co. v. Sarony all the way back in 1884 in a case about whether or not photographs get covered by copyright. And the wonderful Feist Publications v. Rural Telephone Service from 1991 (a case we cite often) hammered the point home by establishing that copyright demands original creative expression. Consider how this already works with photography. A photographer who frames a shot of a landscape gets copyright protection in the creative choices they made—the composition, the angle, the timing, the lighting. But the landscape itself? No human created that. It gets no copyright. The camera mechanically captured what was in front of it, but the human’s original creative decisions (and only those original creative decisions) are what copyright protects.

AI-generated works should work roughly the same way. If a human’s creative input—through a sufficiently specific and expressive prompt, through selection and arrangement, through iterative creative choices—meaningfully shapes the output, that human contribution can be protected. But the parts that the AI generated autonomously, without human creative direction? Those are “the landscape.” They’re the thing no human authored.

There will certainly be disputes at the margins about exactly how much human input is enough, and where the line sits between “I told the AI to make something cool” and genuine creative direction. But the fundamental framework for handling this already exists. We’ve been here before with every new creative tool, from cameras to Photoshop. The principle has always been the same: copyright protects human creativity, regardless of the tool used to express it.

Thaler chose to fight for the one position that had no support in law (or in common sense). His losing streak is now complete, and there’s nowhere left to appeal. But the legacy of his many, many losses is actually kind of useful: he has, through sheer persistence, generated an incredibly clear and consistent body of authority establishing that purely AI-generated works, with no human creative input, do not get copyright protection.

So, thanks for that, I guess. Oh, and I guess we can confidently post that “Recent Entrance to Paradise” image as it, like the monkey selfie before it, is officially in the public domain.

Filed Under: ai, copyright, copyright office, copyrightable subject matter, dabus, human creativity, stephen thaler, supreme court