Updated 2026-09-03
from the news desk
Can AI-generated work be copyrighted? U.S. law on human authorship and AI output
U.S. law draws its main line at human authorship, not at whether software was used. The U.S. Copyright Office and the D.C. Circuit say fully AI-generated output is not copyrightable, while AI-assisted works may be protected to the extent…
The U.S. Copyright Office says material generated wholly by AI is not copyrightable, and the D.C. Circuit held on 18 March 2025 that the Copyright Act requires work to be authored in the first instance by a human being. The same Office says AI-assisted works can still be protected when a human author contributes protectable expression, such as their own text or creative selection, arrangement, or modification of AI output.
The U.S. answer in one rule: human authorship
In its January 2025 report on copyrightability, the U.S. Copyright Office says the key U.S. question is not whether software was used, but whether a human contributed authorship. The Office states: “Copyright does not extend to purely AI-generated material, or material where there is insufficient human control over the expressive elements.”
The D.C. Circuit reached the same bottom line in Thaler v. Perlmutter on 18 March 2025. Writing for the court, Circuit Judge Millett held: “As a matter of statutory law, the Copyright Act requires all work to be authored in the first instance by a human being.” The opinion turned on the application Dr. Stephen Thaler filed, which listed the Creativity Machine as the sole author and described the image as autonomously created by machine.
The Copyright Office says generative AI systems can produce text, images, audio, and video. That means the use of an image model or a large language model does not decide the legal issue by itself. The report says the real question is whether the human contribution qualifies as authorship of the expressive elements in the output, and it adds that sufficiency must be assessed case by case.
Why courts and the Copyright Office require a human author
The Copyright Office says the human-authorship rule rests on the Copyright Clause, the Copyright Act, and court decisions interpreting both. The report points back to the Supreme Court's photography case Burrow-Giles, where the Court treated the photographer's posing, arrangement, and similar choices as authorship even though a machine was used to capture the image.
The Office also points to much older computer-authorship discussions. Abraham Kaminstein, then Register of Copyrights, framed the issue this way: “The crucial question appears to be whether the “work” is basically one of human authorship, with the computer merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.” In plain English, the Office uses expressive elements to mean the parts of a work that carry creative expression, such as wording, visual composition, or selection and arrangement.
The D.C. Circuit added a statutory reading. Judge Millett wrote that the Copyright Act repeatedly treats authors as beings with a life, death, heirs, domicile, nationality, intention, and a signature, and the opinion says those features fit humans rather than machines. One practical point is that this authorship rule is narrower than the broader debate over legal personhood or whether AI should have rights: the court addressed who can be an author under the current Copyright Act.
When AI-assisted work may still be protected
The same January 2025 report says the human-authorship requirement is not a ban on using AI tools. The Office says AI can assist rather than replace human creativity, and it says copyright can still cover the human author's own expression in a work that also contains AI-generated material.
The D.C. Circuit made the same distinction. Judge Millett wrote: “The human-authorship requirement does not prohibit copyrighting work that was made by or with the assistance of artificial intelligence.” The Copyright Office likewise says human authors can claim protection for material they wrote or otherwise created themselves, for creative selection, coordination, or arrangement of material in an output, and for creative modifications of AI-generated output.
The Office's report separates three common routes to human authorship in AI-assisted work: a human's own expressive inputs that remain perceptible in the final output; creative selection, coordination, or arrangement of material; and creative modifications made after generation. Those categories matter because, as the Office says, copyright protects human original expression even when AI-generated material also appears in the same work.
The report also notes that using AI output as brainstorming or as a preliminary outline, without incorporating the output itself, should not affect the copyrightability of the later human-authored work. And the Office says it has registered hundreds of works that incorporate AI-generated material, with registration covering the human contribution.
Why prompts alone are usually not enough
The hardest disputes are about prompting. The Copyright Office says prompts themselves may sometimes contain protectable expression, but it treats the copyright status of the output as a separate question. The Office's conclusion is: “Based on the functioning of current generally available technology, prompts do not alone provide sufficient control.”
The report explains why. The Office says current generative AI systems may include content a user did not ask for and may leave out content the user did ask for. The Office also notes that outputs can vary even when a user repeats the same prompt, and that even settings such as seed values do not always guarantee perfect consistency.
The Office reports that many commenters agreed simple prompts are not enough, and it quotes ASCAP as saying that where a human's role is limited to minimal prompts, the resulting material is not entitled to protection. The same report also says other commenters argued that very detailed, repeated prompting can amount to meaningful control over the result. The Office did not reject that control argument in the abstract; instead, it said that, based on current generally available technology, prompts alone do not provide sufficient control.
The argument for changing the law — and why the Office said no
The Copyright Office says commenters made both sides of the policy case. The report says some argued that extending protection to AI-generated material would encourage the creation of more works and benefit the public. The same report says others warned that wider protection for AI-generated outputs could weaken incentives for humans to create.
WIPO's guide on AI and intellectual property gives a similar two-sided frame. WIPO says one family of copyright theories rests on natural-rights accounts, including personality and labor-based views, and WIPO says those theories require a human creator. WIPO also says a utilitarian view asks whether copyright incentives are actually motivating anyone, which matters when an output is generated by a system rather than by a person.
After reviewing comments and case law, the U.S. Copyright Office concluded that existing U.S. law is enough and that Congress does not need a new AI-output right. The report states: “The case has not been made for additional copyright or sui generis protection for AI-generated content.” For now, the strongest U.S. reference answer is therefore a split rule: no copyright for purely AI-generated output, but possible protection for human-authored parts of AI-assisted work.
Frequently asked questions
Are AI-assisted works ever copyrightable in the U.S.?
Yes. The U.S. Copyright Office says copyright can still cover a human author's own expression in a work that also includes AI-generated material, and the D.C. Circuit says the human-authorship rule does not prohibit work made by or with the assistance of artificial intelligence.
Do prompts alone make me the author of an AI output?
Not under the Copyright Office's January 2025 report. The Office says prompts alone do not provide sufficient control over the expressive elements of the output, even though a prompt itself may sometimes contain protectable expression.
Can I claim copyright in the parts I wrote, arranged, or edited myself?
Yes, to that extent. The Copyright Office says human authors can claim protection for expression they created themselves, for creative selection, coordination, or arrangement, and for creative modifications of AI-generated material.
Did the Thaler case say every AI image is uncopyrightable?
No. The D.C. Circuit decided an application that named the Creativity Machine as the sole author. The Copyright Office says other works that involve human contributions must be analyzed case by case.
Caveats: The statement that the Copyright Office has registered hundreds of works containing AI-generated material appears in the Office's January 2025 report. The policy framing about natural-rights and utilitarian justifications is drawn from WIPO's guide.