At the core of the dispute is a bedrock of copyright law: that copyright is for humans, and humans alone. In legal/technical terms, "copyright inheres at the moment of fixation of a work of human creativity." Most people - even people who work with copyright every day - have not heard it put in those terms. Nevertheless, it is the foundation of international copyright law, and copyright in the USA.

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Here's what it means, in plain English:

a) When a human being,

b) does something creative; and

c) that creative act results in a physical record; then

d) a new copyright springs into existence.

For d) to happen, a), b) and c) all have to happen first. All three steps for copyright have been hotly contested over the years.

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Remember the "monkey selfie," in which a photographer argued that he was entitled to the copyright after a monkey pointed a camera at itself and pressed the shutter button? That image was *not* copyrightable, because the monkey was a monkey, not a human, and copyright is only for humans:

https://en.wikipedia.org/wiki/Monkey_selfie_copyright_dispute

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Then there's b), "doing something creative." Copyright only applies to *creative* work, not work itself. It doesn't matter how hard you labor over a piece of "IP" - if that work isn't creative, there's no copyright. For example, you can spend a fortune creating a phone directory, and you will get no copyright in the resulting work, meaning anyone can copy and sell it:

https://en.wikipedia.org/wiki/Feist_Publications,_Inc._v._Rural_Telephone_Service_Co.

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If you mix a *little* creative labor with the hard work, you can get a *little* copyright. A directory of "all the phone numbers for cool people" can get a "thin" copyright over the *arrangement* of facts, but such a copyright still leaves space for competitors to make many uses of that work without your permission:

https://pluralistic.net/2021/08/14/angels-and-demons/#owning-culture

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Finally, there's c): copyright is for *tangible* things, not intangibles. Part of the reason choreographers created a notation system for dance moves is that the moves themselves aren't copyrightable:

https://en.wikipedia.org/wiki/Dance_notation

The non-copyrightability of movement is (partly) why the noted sex-pest and millionaire grifter Bikram Choudhury was blocked from claiming copyright on ancient yoga poses (the other reason is that they are ancient!):

https://en.wikipedia.org/wiki/Copyright_claims_on_Bikram_Yoga

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Now, AI-generated works are certainly tangible (any work by an AI *must* involve magnetic traces on digital storage media). The *prompts* for an AI output can be creative and thus copyrightable (in the same way that notes to a writers' room or from an art-director are). But the *output* from the AI *cannot* be copyrighted, because it is not a work of human authorship.

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This has been the position of the US Copyright Office from the start, when AI prompters started sending in AI-generated works and seeking to register copyrights in them. Stephen Thaler, a computer scientist who had prompted an image generator to produce a bitmap, kept appealing the Copyright Office's decision, seemingly without regard to the plain facts of the case and the well-established limits of copyright.

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By attempting to appeal his case all the way to the Supreme Court, Thaler has done every human artist a huge boon: his weak, ill-conceived case was easy for the Supreme Court to reject, and in so doing, the court has cemented the non-copyrightability of AI works in America.

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You may have heard that "Hard cases make bad law." Sometimes, there are edge-cases where following the law would result in a bad outcome (think of a Fourth Amendment challenge to an illegal search that lets a murderer go free). In these cases, judges are tempted to interpret the law in ways that distort its principles, and in so doing, create a bad precedent (the evidence from a bad search is permitted, and so cops stop bothering to get a warrant before searching people).

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This is one of the rare instances in which a bad case made *good* law. Thaler's case wasn't even close - it was an absolute loser from the jump. Normally, plaintiffs give up after being shot down by an agency like the Copyright Office or by a lower court. But not Thaler - he stuck with it all the way to the highest court in the land, bringing clarity to an issue that might have otherwise remained blurry and ill-defined for years.

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