- with Inhouse Counsel
(February 18, 2025) - Wilson Elser attorneys Stephen J. Barrett and Gabriela Rios provide an overview of the U.S. Copyright Office's analysis of how certain new technologies are affecting what can be considered copyrightable.
In July 2024, the U.S. Copyright Office released Part 1 of its report on Copyright and Artificial Intelligence, which addresses whether existing laws provide sufficient protection against unauthorized digital replicas. The Copyright Office concluded that a new federal law is required to protect against risks posed by artificial intelligence (AI).
On January 29, 2025, the Copyright Office released Part 2: Copyrightability (the Report), which addresses the copyrightability of outputs generated by AI systems, and analyzes the type and level of human contribution sufficient for copyright protection. The Copyright Office recognizes that copyrightability is determined on a case-by-case basis, setting out the legal principles that should govern the analysis and assessing their application to specific AI-generated content.
Summary of the report's findings
How AI works
As described in the Report, AI systems generate an output from one or more inputs, such as text, images, audio, video, or a combination of mediums. A "prompt" is a type of input, generally in text form, that communicates the desired features of the output.
AI responds to an input by generating an output in the requested format (text, image, audio, video). For example, prompts can describe a topic or subject that the user seeks to evoke, and can include an overall style, tone, or visual technique.
Copyrightability issues raised by AI technologies
The Report details how as early as 1965, developments in computer technology began to raise questions regarding authorship including whether material created using technology is "written" by computers or authored by humans.
The inquiry was whether the "work" is one of human authorship, with the computer being merely an assisting instrument, or whether traditional elements of authorship in the work (such as literary, artistic, or musical expression or elements of selection, arrangement, etc.) were conceived and executed not by a human but by a machine.
Today, the Copyright Office's Report finds that the same analysis applies in the context of AI technology. The copyrightability of any work, whether created with AI or not, requires a fact-specific consideration of the work and the circumstances of its creation.
Where AI merely assists an author in the creative process, its use does not change the copyrightability of the output. On the other end of the spectrum, if content is entirely generated by AI, it cannot be protected by copyright.
For instance, as described in the Report, in early 2023, the Copyright Office provided Guidance, explaining that if a work contains more than a de minimis amount of AI-generated material, a copyright application should disclose that fact and provide a brief statement describing the human author's contributions.
Since that Guidance was issued, the Copyright Office has registered works that incorporate AI-generated material, with the registration covering only the human author's contribution to the work.
Existing legal framework
The Copyright Office stresses that copyright protection in the United States requires human authorship, as rooted in the Copyright Clause of the Constitution. No court has recognized copyright in material created by non-humans. The Report analyzes a series of cases that focus on originality and joint authorship to draw conclusions on the applicability of these legal concepts to AI copyrightability.
In 1991, inFeist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), the Supreme Court rejected the theory that "sweat of the brow" or time and effort alone could be sufficient for copyright protection. Ideas or facts in themselves are not protectible by copyright law, and the Supreme Court has made clear that originality is required. But the Court explained that the requisite level of creativity is extremely low.
As it relates to new technologies, in 1884 in Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884), the Supreme Court considered a constitutional challenge to the extension of copyright protection to photographs. The defendant argued that photographs are not copyrightable because they lack human authorship and instead are a product of a machine.
However, the Court identified creative contributions made by the photographer, including "posing the [subject] in front of the camera, selecting and arranging the costume, draperies, and other various accessories." Therefore, the use of a machine as a tool does not foreclose copyright protection, but the resulting work is copyrightable only if it contains sufficient human-authored expressive elements.
The Court further grappled with the nature of the contribution necessary to qualify as authorship in 1989 in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). In that case, the parties disputed who the author of a sculpture was: the nonprofit organization that conceived of it or the artist asked to make it.
The Court concluded that the artist's contributions, such as sketching the design and executing his creative vision in a tangible medium, made him an author. In a remand to the trial court, the D.C. Circuit made clear that commissioning the sculpture and providing detailed suggestions and directions were insufficient, as those contributions are unprotectible ideas.
Based on the Copyright Office's analysis of these cases, the Report concludes that joint authorship provides a helpful analogy in assessing whether a party has contributed sufficient expression to be considered an author. To be a joint author, one must make a copyrightable contribution.
Application to various types of human contributions to AI
The Copyright Office posits that there is an important distinction between using AI as a tool to assist in the creation of works and using AI as a stand-in for human creativity. While assistive uses that enhance human expression do not limit copyright protection, uses where an AI system makes expressive choices require further analysis.
The Report concludes that this distinction depends on how the system is being used, not on its characteristics. Below we summarize the Report's assessments on three types of human contributions to AI.
Prompts: The Copyright Office took into consideration various notice of inquiry comments on the implications of creating outputs by providing unique prompts to an AI system. The Copyright Office concluded that given the current available technology, prompts alone do not provide sufficient human control to make users of an AI system the authors of the output.
As underscored in the Report, while a highly detailed prompt could contain the user's desired expressive elements, at present they do not control how the AI system processes them in generating the output. For example, some comments stressed that generative AI systems can produce a seemingly limitless number of variations in response to the same prompt, no matter how many times that prompt is used.
Moreover, the Copyright Office believes that the joint authorship cases support this conclusion, finding that the provision of detailed directions, without influence over how those directions are executed, is insufficient. The Copyright Office posits that in theory, AI systems would one day allow users to exert control over their expression in an output that the system's contribution would become rote or mechanical, although this is not currently the case.
Prompts do not appear to adequately determine the expressive elements produced, or control how the system translates them into an output. For example, the Report describes a sample prompt about a cat entered into a popular AI system. The prompt did not include the cat's breed or coloring, size, pose, or any attributes of its facial features or expression. Instead, the output made those decisions. Where no specific instructions were provided, the AI system filled in the gaps.
Notably, the Copyright Office also agreed that authorship by adoption does not provide a basis for claiming copyright in AI-generated outputs, finding that selection among options produced by a system cannot be considered copyrightable authorship since selecting an output is not a creative act.
The Copyright Office notes that there may come a time when prompts can sufficiently control expressive elements in AI-generated outputs that reflect human authorship, and if so, it may come to a different conclusion on prompts.
Inclusion of human-authored expressive inputs: AI systems can take inputs in the form of text, images, audio, video, or a combination of these mediums. Some systems allow inputs to be retained as part of the output.
As presented in the Report, a human author can create an original illustration and input it into an AI system, instructing the system to modify the color or make a drawing more realistic. Thus, 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.
Modification or arrangement of AI-generated outputs: Human authorship also can be added in the final product. The Report explains that a human could modify material generated by AI technology by selecting, coordinating, and arranging it in a creative way, providing protection for the final product, though not for the AI-generated output alone.
The Report also considers the combination of human-authored text with AI-generated images. The Copyright Office previously found that the selection and arrangement of AI-generated images with human-authored text in a comic book were protectible as a compilation.
According to the Copyright Office, such a compilation had sufficient creativity under Feist with respect to the selection of the images that make up the work and the placement and arrangement of the images and text on each page of the work.
The Report further postulates that if a user edits, adapts, enhances, or modifies AI-generated output in a way that contributes new authorship, the output would be entitled to protection. However, the copyright would extend only to the material the human author contributed, but not to the underlying AI-generated content.
Some AI platforms offer tools for users to select, edit, and adapt AI-generated content. Such tools can enable the user to control the selection and placement of creative elements. As set out in the Report, whether such modifications rise to the minimum standard of originality required under Feist, thus making them copyrightable, will depend on a case-by-case determination.
The need for legal changes
Given the applicability of the current legal framework, the Copyright Office's Report opines that a case has not been made for additional protection of AI-generated material beyond existing law. Copyright requires human authorship, and copyright law cannot be the basis of protection for works that do not satisfy that requirement. Of importance, the incentives authorized by the Copyright Clause are provided to human authors.
Moreover, the Copyright Office is concerned about the impact of AI-generated material on human-authored works. It explains that if AI-generated content drowns out human-authored works in the marketplace, additional legal protections would undermine the goals of copyright law.
Ultimately, the Copyright Office does not recommend a change in the law because the copyrightability inquiry requires analysis of each work and the context of its creation, and statutory language would be limited in its ability to provide brighter lines. With respect to determining the copyrightability of AI outputs, the Copyright Office states that courts will provide further guidance on the human authorship requirement as it applies to specific uses of AI.
Conclusions and recommendations
As summarized in the Report, the Copyright Office ultimately made the following conclusions and recommendations:
- Questions of copyrightability and AI can be resolved pursuant to existing law, without the need for legislative change.
- 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.
- Copyright protects the original expression in a work created by a human author, even if the work also includes AI-generated material.
- Copyright does not extend to purely AI-generated material, or material where there is insufficient human control over the expressive elements.
- Whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analyzed on a case-by-case basis.
- Based on the functioning of current generally available technology, prompts do not alone provide sufficient control.
- 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.
- The case has not been made for additional copyright or sui generis protection for AI-generated content.
Originally published by Westlaw Today .
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