It has become a modern mantra to state that Artificial Intelligence is everywhere. It has become a cultural fetish, a focus of mass credulity and awe for some, an object of fear and dread among others. We have never before experienced the explosions in investment and adoption that AI is currently demonstrating. Predictably, the development of relevant law has not kept up. Perhaps, nowhere is this lag more evident than in the field of Intellectual Property, specifically in patents, copyrights and trade secrets. In the field of copyright, a court recently held that a work of art created by AI was not subject to copyright registration because the registration application requires that the author of the work be named, and that the author be a human being.ii
The US Copyright Office recently issued a guidance document regarding the issues that arise when considering whether AI outputs may be within the scope of expressive works that are subject to protection by the copyright statute.iii The Office makes the following conclusions and recommendations. I have indicated my comments in italics.
• Questions of copyrightability and AI can be resolved pursuant to existing law, without the need for legislative change. Amid the current political turbulence, the Office is advising against any big changes in the copyright statutes.
• 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. Some speculate that in the future, the Office may require disclosure of the use of AI tools in copyright registration applications. This position would avoid disincentivizing such disclosure.
• Copyright protects the original expression in a work created by a human author, even if the work also includes AI-generated material. This position finds support in the application of copyright protection to a photograph of Oscar Wilde.iv
• Copyright does not extend to purely AI-generated material, or material where there is insufficient human control over the expressive elements. This position aligns with Thaler.
• Whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analyzed on a case-by-case basis. This will cause the cost of copyright enforcement to explode, effectively pricing out less well financed authors.
• Based on the functioning of current generally available technology, prompts do not alone provide sufficient control. This essentially would require the addition of some original expression by a human to the AI generated output.
• 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. Would a creative arrangement of purely AI-generated materials be protectable?
• The case has not been made for additional copyright or sui generis protection for AI-generated content. This position will disappoint those who had lobbied for shoe-horning the use of AI as a creative tool into the work-for-hire doctrine.v
Congress may at some point choose to act, but until then, courts will decide questions regarding the scope of copyright protection. As a consequence of the recent dismantling of Chevron deferencevi, the policy statements and decisions of the US Copyright Office in such matters will not carry any special legal presumptions.
This report does not address other prominent questions regarding AI-generated content, specifically whether such content may violate the rights of authors of works used to train the AI models, and further whether users of AI tools may be subjected to liability for copyright violations under theories of contributoryvii or vicariousviii infringement.
Practice Tips
If your client must use AI as a tool to create a work for which she hopes to later obtain a copyright registration, she should consciously make her own modifications to the work and document such modifications.
AI users should be aware of the risks of liability for direct and secondary infringement of other authors’ rights. User agreements can be enlightening regarding such risks.
As these can be somewhat esoteric questions, it may be advisable to confer with counsel experienced in copyright matters.
Gerard Reinhardt is an attorney with over 25 years of experience in Intellectual Property. He is licensed to practice law in Florida, New York, Texas, and the District of Columbia. He is also registered to practice before the US Patent and Trademark Office.
[The] Copyright Office acted properly in denying copyright registration for a work created absent any human involvement. Thaler v. Perlmutter, 687 F. Supp. 3d 140, 150, (DC Dist Ct 2023).
“Copyright and Artificial Intelligence, Part 2: Copyrightability, A Report of the Register of Copyrights”, January 2025.
Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (US 1884). v“Under a provision of the Copyright Act of 1976 (17 USCS 2
“Under a provision of the Copyright Act of 1976 (17 USCS 201(b)), if a work is a ‘work for hire,’ the employer or other person for whom the work is prepared is considered the author and owns the copyright, unless there is a written agreement to the contrary.” Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 732 (US 1989).
“Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. “ Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412 (US 2024).
“Traditionally, ‘one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a 'contributory' infringer.’" A&M Records v. Napster, Inc., 239 F.3d 1004, 1019 (9th Cir, 2001) (citation omitted).
“[One] commits vicarious copyright infringement when [she] profit[s] from direct infringement while declining to exercise a right to stop or limit it. To state a claim for vicarious copyright infringement, a plaintiff must allege that a defendant [1] has declined to exercise the right and ability to supervise or control the infringing activity and [2] enjoys a direct financial benefit from the infringing activity.” Richards v. Warner Music Grp., 2024 U.S. Dist. LEXIS 175192, *10-11 (Dist.SDNY 2024) (citations omitted).
