On January 29, 2025, the U.S. Copyright Office issued the second part of its much-anticipated policy report concerning copyright and artificial intelligence (AI). This section concerns the copyrightability of AI-generated outputs. Overall, the Copyright Office found that questions of copyrightability and AI can be resolved pursuant to existing law and that no legislative changes are necessary.
The Copyright Office reiterated its longstanding position that human authorship is an essential requirement for copyright protection in the United States. According to the Copyright Office, while copyright does not extend to purely AI-generated material, outputs of generative AI can be protected by copyright where a human author has sufficient control over the "expressive elements." The Copyright Office stated that it will determine whether human contributions to AI-generated outputs are sufficient to constitute authorship on a case-by-case basis. It did, however, provide the following examples where sufficient human authorship may exist:
- The selection and arrangement of AI-generated materials with human-authored content (potentially protectable as a compilation).
- Modifications to AI-generated content using tools to select, edit, and adapt AI-generated content in an iterative fashion.
- Where a human inputs their own copyrightable work as an input (e.g., an original drawing) and that work is perceptible in the output, they will be the author of at least that portion of the output.
The Copyright Office also clarified that even if a work includes AI-generated material, that does not affect the copyrightability of the larger human-authored work as a whole. For example, a film including AI-generated special effects is copyrightable, even if the AI effects themselves are not.
Finally, the Copyright Office maintained that the mere provision of prompts does not demonstrate sufficient human authorship for copyright protection. Finding that "[p]rompts essentially function as instructions that convey unprotectible ideas," the Copyright Office concluded that prompts "do not control how the AI system processes them in generating the output." Specifically, "[p]rompts do not appear to adequately determine the expressive elements produced, or control how the system translates them into an output." While "prompts may reflect a user's mental conception or idea, . . . they do not control the way that idea is expressed" and the "user lacks control over the conversion of their ideas into fixed expression."
Takeaways from the Report:
- Existing U.S. copyright law is flexible enough to address issues concerning the copyrightability of AI-generated material and no legislative changes are necessary.
- AI-generated outputs can be protected by copyright only where a human author has determined sufficient expressive elements.
- Human authors are entitled to copyright in their works of authorship that are perceptible in AI-generated outputs, as well as the creative selection, coordination, or arrangement of material in the outputs, or creative modifications of the outputs.
- Whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analyzed on a case-by-case basis.
- The use of AI to assist in the process of creation or the inclusion of AI-generated material in a larger human-generated work does not bar copyrightability.
- Based on the functioning of current generally available technology, prompts alone do not provide sufficient control for copyright protection of AI-generated outputs.
- The case has not been made for changes to existing law to provide additional protection for AI-generated outputs.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
