On January 29, 2025, the US Copyright Office issued a long-awaited report on the copyrightability of works consisting of or incorporating material generated by artificial intelligence (AI) systems.1 The report is broadly consistent with copyright registration guidance the Office provided in 2023,2 but recognizes that AI is increasingly being used in the creation of works in a wide variety of ways that require nuanced and fact-specific analysis to determine the scope of copyright protection.3
The report strongly reiterates the Office's position that "copyright protection in the United States requires human authorship."4 It then identifies the key distinction in assessing copyrightability as whether AI tools have been used "to assist" or instead as a "stand in" for human creativity.5 Applying that principle, the report concludes that, based on the current state of generally-available technology, "prompts alone do not provide sufficient human control to make users of an AI system the authors of the output."6 However, the report recognizes a number of ways in which AI systems can be used in the creation of works that will have copyright protection. The report also recommends against any new legislation that would provide additional copyright or sui generis legal protection for AI-generated material.
As AI tools are being used more and more in creative processes, application of the principles described in the report is likely increasingly to be an issue in copyright litigation. Thus, when creators use AI, it will be important to keep records of how the AI is used and relates to human creativity, and it will be important for copyright owners to reflect the use of AI carefully in their registration applications.
This is the second in a series of reports stemming from an ongoing policy study concerning copyright and related issues raised by the widespread availability and use of AI, following the Office's report on "digital replicas" in August 2024.7 As part of its study, the Office solicited public comments on numerous issues involving the application of copyright law to AI, including whether and under what circumstances a human using a generative AI system could be considered the "author" of the generated material and whether new legal protections should be created for AI-generated material. The report takes into consideration the Office's review of about 5,000 comments it received concerning those issues.
The third report from the Office's study will address copyright issues relating to the training of AI models, including fair use, allocation of liability, and licensing. That highly-anticipated report is expected in the coming months.
Below are some key takeaways from the Office's copyrightability report.
Human Authorship Is Required
The report explains that there is a difference between AI that "assist[s] in the creation of works," and AI that is "a stand-in for human creativity."8 According to the report, "assistive uses that enhance human expression do not limit copyright protection," while "uses where an AI system makes expressive choices require further analysis."9
Consistent with the Office's 2023 registration guidance, the report states that, at present, prompts to generally-available generative AI systems "do not provide sufficient human control to make users of an AI system the authors of the output."10 Reviewing the performance of current systems, the Office notes that outputs do not necessarily conform fully to the prompts that generated them, and may contain matter not directed by the prompts, while the same prompt can generate multiple different outputs. This is the case even if a prompt provides "detailed directions"11 or is repeatedly revised.12 Thus, the Office believes that it is the AI system that is determining the expressive elements of the output.13 Analogizing to cases concerning claims to joint authorship, the Office finds human control over current widely-available AI systems to be insufficient to support a claim of authorship based on prompting.14
However, the report recognizes that AI systems are used in creative processes in a wide variety of ways, and "various forms and combinations of human contributions can be involved in producing AI outputs."15 Works will be copyrightable to the extent they have human contributions that qualify as authorship.16 For example, the report clarifies that "the inclusion of elements of AI-generated content in a larger human-authored work does not affect the copyrightability of the larger human-authored work as a whole."17 The report explains that using AI in a brainstorming process and incorporating ideas from AI-generated material into a human-created work does not affect the work's copyrightability.18 The report also gives the example of a sound recording with a vocal track created using a special-purpose AI model to help realize the sounds that the creators wanted. The Office registered it, "because the sound recording used AI as a tool, not to generate expression."19
The report discusses in detail two situations in which AI is often used to assist human creativity such that some copyright protection may be available.
(1) Expressive inputs that can be perceived in AI-generated outputs
The report concludes that "where a human inputs their own copyrightable work and that work is perceptible in the output, they will be the author of at least that portion of the output."20 The report distinguishes such expressive inputs from prompts that "merely communicate desired outcomes."21 Examples of processes resulting in potentially-copyrightable outputs could include the inputting of an original, human-authored illustration combined with a prompt to modify certain aspects of the illustration's coloring, or uploading a story written in the first-person and prompting an AI system to turn it into a story told from the third-person point of view.22 In these cases, a copyright registration will be limited to the original expressive elements of the human-authored work that are "clearly perceptible" and "separable from the non-human expression" in the resulting output.23
(2) Modifications or arrangements of AI-generated outputs
Consistent with the Office's 2023 registration guidance, the report also explains that when human authors modify, arrange or select AI-generated material in a way that rises to the required standard of originality, the result should be copyrightable.24 In such cases, the copyright would extend to protectible (i.e., expressive) material contributed to the work by the human author, but not the AI-generated material.25 The report also describes cases where generative AI systems provide tools allowing users to "exert control over the selection, arrangement, and content of the final output."26 In such cases, the expressive elements of the output may be copyrightable if they are sufficiently original.27
New Legislation Is Not Needed
Some commenters advocated providing legal protection for AI-generated material through legislation. After evaluating the arguments for and against providing such protection, the Office concludes that "the case has not been made for additional protection for AI-generated material beyond that provided by existing law."28
As a threshold matter, the Office rules out legislation to provide copyright protection for AI-generated material, because copyright protection requires human authorship.29
The Office also is not persuaded by policy arguments for providing sui generis protection to AI-generated material.30 It does not believe that there is a need for new incentives for the creation of either AI models or AI-generated material. Rather, the report agrees with commenters' concerns regarding the effect of AI-generated material on human authorship and the associated societal benefits, noting that if AI-generated material drowns out human-authored content, new legal protections would undermine, not advance, the goals of copyright law, and the availability of too many works in the marketplace could make it harder for individuals to find quality content.31
The report dismisses comments expressing concern that if the U.S. does not extend legal protection to AI-generated outputs, it will fall behind in international competition.32 The Office explains that the U.S. is bound by its Constitution and copyright principles. Rather than abandoning those principles, the Office believes a "human-centered approach" is good policy.33
Finally, the Office was unmoved by comments arguing that creators would be better served if given greater clarity concerning protection for works with AI-generated material.34 The Office does not view legislation as necessary to provide clarity at this point, stating that the report, along with court decisions, will provide further guidance on the contours of the human authorship requirement as applicable to AI-generated material.35
Footnotes
1. U.S. Copyright Office, Copyright and Artificial Intelligence, Part 2: Copyrightability (January 2025) [hereinafter "Report"], available at https://www.copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-2-Copyrightability-Report.pdf.
2. Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16,190 (Mar. 16, 2023); see also Jenner & Block Client Alert: Copyright Registration for Works Containing AI-Generated Material, available at https://www.jenner.com/en/news-insights/publications/client-alert-copyright-registration-for-works-containing-ai-generated-material. The Office has indicated that it plans to supplement its registration guidance based on the report.
3. Report at 2.
4. Id. at 7. The report also notes that other countries that have addressed whether copyright protection should extend to works containing AI-generated material – including Korea, Japan, China, the European Union and the United Kingdom – have agreed that copyright requires human authorship. Id. at 28-30.
5. Id. at iii, 12.
6. Id. at iii, 18.
7. U.S. Copyright Office, Copyright and Artificial Intelligence Part 1: Digital Replicas at 22 (July 2024), available at https://www.copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-1-Digital-Replicas-Report.pdf; see also Jenner & Block Client Alert: U.S. Copyright Office Issues "Digital Replica" Report Finding Urgent Need for New Federal Legislation, available at https://www.jenner.com/en/news-insights/publications/client-alert-us-copyright-office-issues-digital-replica-report-finding-urgent-need-for-new-federal-legislation.
8. Reportat 12.
9. Id.
10. Id. at 18.
11. Id.
12. Id. at 20.
13. Id. at 18-22.
14. Id. at 18-19.
15. Id. at 2.
16. Id. at 8.
17. Id. at 27 ("For example, a film that includes AI-generated special effects or background artwork is copyrightable, even if the AI effects and artwork separately are not.").
18. Id. at 12.
19. Id. at 38.
20. Id. at 24-27.
21. Id. at 22.
22. Id.
23. Id. at 23.
24. Id. at 27.
25. Id.
26. Id. at 26.
27. Id. at 26-27.
28. Id. at 36.
29. Id.
30. Id.
31. Id.
32. Id. at 38-39.
33. Id. at 39. The Office also rejected suggestions that protection for AI-generated works would empower more people with disabilities to create, explaining that the applications identified by commenters involved use of AI to assist human creativity, rather than to generate material without human authorship.
34. Id. at 39-40.
35. Id. at 40.
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