The Supreme Court Just Made AI Art Legally Worthless

...and other reasons to buy a pen.

I was sitting at my drawing table this morning, staring at a very stubborn ink smudge on my fingernail (I think it might be paint? But it could be ink. I don’t know.) I’d just spent two hours wrestling with my pen nib, trying to draw a person falling butt-first into a toilet. My neck hurt, my coffee had gone cold, and my brain felt like day-old oatmeal.

In moments like that, the frictionless, sterile world of Artificial Intelligence can look awfully appealing. You could just type, “person falling butt-first into a toilet, cinematic lighting, 4k,” and an algorithm spits out a masterpiece in four seconds. No ink smudges. No carpal tunnel. No existential dread or anxiety attacks.

But then I opened the news*, and I felt a deep, warm wave of schadenfreude wash over me.

(*Let’s be honest. I opened Instagram and doomscrolled until I saw a news article.)

The Supreme Court of the United States just officially declined to review a petition regarding the copyright eligibility of AI-generated artwork.

By refusing to intervene, the country’s highest judicial court signalled an implicit consensus with lower courts, effectively cementing the rule that artificial intelligence cannot be legally recognised as an author.

In short, AI art cannot be copyrighted. Zero. Zilch. It belongs to the public.

To understand why this is so massive, we have to look at the bedrock of American copyright law. The U.S. Copyright Office has consistently maintained that human authorship is an absolute, non-negotiable prerequisite for intellectual property protection. They will literally refuse to register a claim if a human being with an ink-stained fingernail didn’t create the work.

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This isn’t actually a new fight. It dates back to the late nineteenth century. I know this because I spent time researching this instead of finishing that picture of the person on the toilet. (I’ll get back to it, I promise.)

In 1884, the Supreme Court heard the landmark case of Burrow-Giles Lithographic Co. v. Sarony. Back then, sceptics of the newly invented camera argued that a photograph was just a mechanical reproduction of physical reality and lacked any creative intervention. But the Court ruled that photographs were copyrightable because the photographer made choices regarding lighting, posing, and costume, which constituted the necessary “original intellectual conceptions of the author”.

For the last year, tech bros have been arguing that typing a prompt into a large language model is the modern equivalent of clicking a camera shutter. The courts have firmly answered: No. No, it isn’t.

The judicial consensus is that formulating a text prompt is actually akin to giving instructions to a commissioned artist, rather than exercising the direct, granular control required for true authorship. You aren’t the painter; you’re just the guy yelling at the painter.

This whole legal showdown was largely forced by a technologist named Dr Stephen Thaler. He deliberately tried to register a two-dimensional artwork titled “A Recent Entrance to Paradise,” explicitly listing his AI system, the “Creativity Machine,” as the sole author. (Woof, Stephen.) When the Copyright Office repeatedly denied the application, he sued. The federal district court unequivocally affirmed the denial, declaring that while copyright law adapts to new technologies, the fundamental requirement of human creativity remains immutable.

So. The courts have conclusively determined that non-human entities-whether they’re advanced neural networks or animals (like in the famous “Monkey Selfie” dispute- Google it)- lack the legal standing recognised by the Copyright Act.

The economic ramifications of this are bonkers.

Think about all those massive corporate entities that fired their art directors and illustrators to use generative AI for their marketing, brand identity, and product design. Because the raw outputs of platforms like Midjourney, DALL-E, NanoBanana, and Stability AI cannot be copyrighted, they immediately enter the public domain upon generation… eep!

That means they cannot be exclusively owned, licensed, or protected from unauthorised reproduction. If a corporation uses a purely AI-generated logo, they possess absolutely no legal mechanism to prevent a competitor from using the exact same image.

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Related Reading:

Death of Illustration by a Thousand Prompts

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The irony is thick enough to spread on toast. The companies that tried to cut costs by removing the human from the creative process have just legally stripped their own assets of all financial value.

But this isn’t the end of the story; it’s just the end of chapter one. The legal frontier is now shifting from treating AI as a “creator” to treating it as a “tool”. (Or calling the person using it “A complete tool.”) The Copyright Office has indicated that if a human significantly modifies an AI-generated image or arranges it in a sufficiently creative manner, those specific human contributions can be copyrighted.

This means future litigation is going to obsessively focus on quantifying the exact volume of human “sweat of the brow” and “creative spark” required to reclaim legal ownership over algorithmic generation. Creators are now going to have to submit detailed disclosures, essentially providing a granular accounting of which pixels were generated by a machine and which were manipulated by a human hand.

It all comes back to the wobble. The friction. The ink smudges. Remember me talking about that last week? (Take a look below)

The machine can generate a flawless, antiseptic image in seconds, but the law has decided that without the struggle- without the deeply flawed, neurotic, caffeinated and unshowered human being holding the pen- it simply has no intrinsic legal value. The friction is the only thing that matters. (God forbid.)

I looked down at Morris, who was currently farting in his sleep on a sketchpad I dropped on the floor. He didn’t care about the Supreme Court. He didn’t care about intellectual property. He just wanted to be a dog. And fart.

I picked up my pen, farted, dipped it back into the ink, and went back to work drawing someone falling butt-first into a toilet. The ship might be sinking, and the tech billionaires might be trying to automate our souls, but at least the law still recognises that my messy, imperfect crosshatching belongs to me.

Read more of my writing on this here:

I want to hear from you on this one.

How are we feeling about this? Does this Supreme Court decision give you a sense of relief, or does this incoming nightmare of having to legally prove exactly which pixels you manipulated sound exhausting? Is the tech industry probably just going to find a new loophole?

Let’s talk it out in the comments. I’ll be down there reading them, right after I wash this paint off my fingernails.. (it was paint.)

‘til next time!
Your pal,