By: Phoebe McCullough
The rise of generative artificial intelligence (AI) over the past few years has already resulted in many questions—and lawsuits—in regards to intellectual property law.1 Whether or not copyright law applies to images produced by generative AI is one such question.2 As of January 19, 2025, we finally have some guidance.3
The United States Copyright Office has prepared a three-part AI report on the legal and policy issues related to copyright and AI4. The second part of the report, which tackles the issue of copyrightability of images and “output” of generative AI, is now available to the public.5 The report, which was developed over 2023, took into account over 10,000 comments from the public, whose backgrounds ranged from law to the arts to public interest.6 Some of the Office’s conclusions include the following:
a) The use of AI tools to assist rather than stand in for human creativity does not affect the availability of copyright protection for the output.
b) Copyright protects the original expression in a work created by a human author, even if the work also includes AI-generated material.
c) Copyright does not extend to purely AI-generated material, or material where there is insufficient human control over the expressive elements.
d) Whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analyzed on a case-by-case basis.
e) Based on the functioning of current generally available technology, prompts do not alone provide sufficient control.7
The gist of these conclusions is that there must still be some significant human involvement in the creation of a work that includes AI generated material. An author of a work can use AI to aid in their process, but AI cannot completely replace that author’s labor. Where AI is used merely as an aid, the work still qualifies for copyright protection. The author’s original expression is still protected, even where AI is utilized. But, where the human author does not have enough control over the expression found in the work, the work is not protectable.
The Office clarifies in these conclusions that purely AI generated material is not protectable by copyright. Additionally, there is no bright line rule for whether or not a human has contributed enough to an AI generated work to be considered the author. This is something to be determined on an individual basis. The Office did decide that merely entering a prompt is not enough of a contribution to consider the human entering the prompt as the author of the work.
In short, a work containing AI generated content will likely receive copyright protection if a human has contributed significantly to the expression found in the work.
Sources:
[1] Gil Appel et. al, Generative AI Has an Intellectual Property Problem, HARV. BUS. REVIEW (Apr. 7, 2023), https://hbr.org/2023/04/generative-ai-has-an-intellectual-property-problem.
[2] Id.
[3] Copyright Office Releases Part 2 of Artificial Intelligence Report, U.S. COPYRIGHT OFFICE (Jan. 29, 2025), https://www.copyright.gov/newsnet/2025/1060.html#:~:text=The%20Office%20confirms%20that%20the,protection%20for%20AI%2Dgenerated%20outputs.
[4] Id.
[5] Id.
[6] COPYRIGHT AND ARTIFICIAL INTELLIGENCE, PART 2: COPYRIGHTABILITY
[7]Id.