Amicus Brief Superficially in Support of Thaler’s Petition for Certiorari (Which I Guess I’m Not Going to File Now)

Brian L. Frye

This is an essay styled as an amicus brief in support of Dr. Richard L. Thaler’s petition for certiorari in Thaler v. Perlmutter. Thaler used a generative AI model to create a digital image and filed a copyright registration application for the image as a work made for hire. When the Copyright Office refused to register the image, Thaler appealed all the way to the Supreme Court.

For a moment, it seemed like Thaler might just fish his wish. When he filed his cert petition, the government declined to respond, presumably because it considered him a crank and his petition a “Hail Mary.” But after considering the petition in conference, the Supreme Court asked the government to file a reply brief. Everyone in the copyright commentariat was surprised, including me. Were there enough votes to hear the case? Was the Court planning to extend copyright to AI-generated works? But in the event, conventional wisdom prevailed, and the Court denied Thaler’s petition. Perhaps it will revisit the issue at the urging of a more conventional petitioner.

Some readers may wonder why I chose to write this Essay in the style of an amicus brief. I will confess that I did it largely for the lulz, simply because I could. But I had a substantive reason as well. Why not use the form of an amicus brief to reflect on the merits of a case that presents at least the simulacrum of a legal dispute?

In theory, an amicus brief is supposed to give the court helpful information that the parties can’t or won’t provide themselves. Some amici try to pursue that goal, and occasionally they even succeed. But the exceptions prove the rule. It’s an open secret that most amicus briefs are really just poorly disguised editorials, intended to explain how a case ought to be decided and why alternative outcomes would be wrong, or just to express an opinion about the subject matter of a case.

If the paradigmatic amicus brief is already essentially an essay, then why limit them to litigation? Litigants encourage friendly amicus briefs and complain about unfriendly ones, presumably because they believe amicus briefs are rhetorically effective, or at least can be. If amicus briefs were pointless, no one would care about them. Policy organizations wouldn’t encourage them, legal scholars wouldn’t write them, and law firms wouldn’t file them.

Anyway, this Essay uses the form of an amicus brief to argue that the Supreme Court should grant Thaler’s petition for certiorari, not because the Copyright Office wrongly refused to register, but because it refused to register for the wrong reason. While the Copyright Office refused to register because Thaler’s work lacks human authorship, it should have refused to register because the work lacks creativity. The difference is doctrinally subtle, but ontologically important.