The U.S. Copyright Office has published a detailed report on generative AI and copyright to emphasize the necessity of human authorship for copyright protection. The report clarifies that while AI can be a powerful tool in the creative process, it cannot replace human creativity in the eyes of copyright law.

Behind the Scenes

The U.S. Copyright Office’s January 2025 report clarifies the copyrightability of works created with generative AI, reaffirming the requirement of human authorship under U.S. law.

Human authorship is essential.

Purely AI-generated content cannot be copyrighted. In Thaler v. Perlmutter, the Office refused registration for an AI-created image, affirming machines lack legal authorship.

Human contributions must control expressive elements. The Office cited Burrow-Giles Lithographic Co. v. Sarony and Feist Publications to underscore that tools like AI do not negate protection if humans direct the creative output.

Prompts alone are insufficient for authorship.

Even detailed prompts (e.g., “cartoon spaceship”) are unprotectible ideas. The Office likened prompting to commissioning a work without controlling execution, as seen in CCNV v. Reid.

Example: A prompt for a “bespectacled cat in a robe reading a newspaper” yielded unpredictable AI details (e.g., a human hand holding the paper), highlighting the lack of human control.

Protectible Human Contributions

• Expressive Inputs: If a human-authored work (e.g., a hand-drawn sketch) is perceptible in the AI output, that portion is copyrightable. The Office registered Rose Enigma, where a user’s drawing influenced the AI-generated image, but disclaimed non-human elements.

• Modifications/Arrangements: Human selection or creative editing of AI outputs can qualify. The comic Zarya of the Dawn was registered for its human-authored text and arrangement of AI-generated images, treated as a compilation.

Assistive vs. Generative Uses

Assistive AI (refining music tracks, removing photo imperfections) does not undermine copyrightability. The Office cited Randy Travis’s AI-assisted vocal track, which preserved human creative intent.

Generative ai outputs lacking human control remain unprotected.

The Office rejected “authorship by adoption,” comparing iterative prompting to “spinning a roulette wheel” (Authors Guild).

International Consensus on Human Authorship

South Korea, Japan, and the EU require human creativity for protection. China’s Beijing Internet Court granted copyright in an AI-generated image only after 150+ human revisions.

No Legislative Changes Recommended

The Office concluded existing law is sufficient, rejecting sui generis rights. Concerns about market dilution (e.g., 170M AI-generated music tracks threatening royalties) outweighed arguments for incentivizing AI development.

Final Take

The Office will continue updating guidance (e.g., Compendium revisions) and evaluating human contributions case by case. Creators should document their expressive control over AI outputs to safeguard copyright claims.

Max Einhorn is the Co-founder and Principal of Gennie, a 21st century content studio harnessing the power of cutting edge technology to revolutionize the ways stories are told.