The U.S. Copyright Office issued its second report on issues related to registration of works using artificial intelligence (AI). The second report, issued on January 29, 2025, discusses copyrightability and application-related issues.
The Copyright Office’s analysis of the legal framework is not surprising given the fairly well-settled nature of the case law landscape. The constitutional mandates the copyright registration to “authors,”1 which has been interpreted to only “humans.”2 From there, the Copyright Office pointed out case law addressing AI-generated outputs. In Thaler v. Perlmutter, Stephen Thaler sued the Register of Copyrights when the Copyright Office refused registration to a work, “A Recent Entrance to Paradise,” which was entirely created through prompts in his AI machine. The district court in the District of Columbia held that “authorship centers on acts of human creativity.”3 The court noted that case law originating from the Copyright Act of 1909 demonstrated that “author” referred to “human.”4
Addressing situations when the AI system assists in human endeavor, the Copyright Office noted a difference between using AI for purposes to assist the creation of a work and using AI to stand-in for human creativity. Works that are assisted by AI are unaffected by the AI guidance, because the work itself is a product of human endeavor. However, on the opposite end, works generated entirely by an AI system would not be copyright-protectible material.
Prompts were discussed in the report. Specifically, questions were addressed as to whether the nature of prompts provided enough human creativity, because it is a human entering the data for the prompt. However, the report indicated that prompts – or authorship by adoption – did not contain enough human control to enable sufficient human authorship.
For works where a human as modified the AI-generated work, by “selection, arrangement, and coordination” of the output into a creative manner determined by a human, it would probably be deemed copyrightable material.
Works that include AI-generated content set into a larger human-authored work do not affect the copyrightability of that work as a whole.
The takeaways from the Copyright Office’s guidance:
- Prompts do not create sufficient originality to be deemed human authorship;
- Those works where an AI system merely assists a human in creating a work are probably eligible for copyright registration;
- Those works that are entirely created by an AI system are not eligible for copyright registration;
- Works with some AI elements blended into a larger human-generated work are still eligible for copyright registration.
AI is an ever-changing technology that will continue to raise questions for how IP laws can address the subject matter. If you have any questions, please feel free to contact Yonaxis I.P. Law Group.
- U.S. Const., Art. I, Sec. 8, Cl. 8. ↩︎
- See, e.g., Naruto v. Slater, 888 F.3d 418, 424 (9th Cir. 2018) (holding a monkey cannot bring suit for copyright infringement because it is an animal and not a human) (“The Copyright Act does not expressly authorize animals to file copyright infringement suits under the statute.” Id. at 426). ↩︎
- Thaler v. Perlmutter, 687 F. Supp. 3d 140, 148 (D.D.C. 2023). ↩︎
- See, e.g, Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58-59, 4 S. Ct. 279 (1884) (holding copyrightable creativity stems from “authors” because in spite of a photograph being generated by a camera, a mechanical device, it is the representation of the “original intellectual conception of the author.” ↩︎