BizTech Law Blog

Recommendations on AI and Copyrightability from the U.S. Copyright Office’s Latest Report

To hear more on this topic, business & IP attorney, Lindsey Mead, recently appeared on an episode of Expert Connexions to discuss the copyrightability of AI-generated content. See the interview here.

The United States Copyright Office (the “Office”) released the latest part in its Report on Copyright and Artificial Intelligence on January 29, 2025. Part 1, titled “Digital Replicas” was published on July 31, 2024 and discussed videos, images, and audio recordings that are manipulated to falsely depict individuals and information. This practice of creating “digital replicas” are also known colloquially as “deepfakes”. Part 1 of the Office’s Report on Copyright and Artificial Intelligence ended with a recommendation to Congress to establish a federal right that protects American citizens from the harms of unauthorized digital replicas.

For more information about Part 1, please see Copyright and Artificial Intelligence, Part 1 Digital Replicas Report. Additionally, our firm has previously discussed the risks of deepfakes in a previous blog post: What is a Deepfake and How Might it Impact Your Business? | Generative AI: Technology Law Blog, IT Law & Articles.

A little over three months ago, Part 2 of the Office’s Report on Copyright and Artificial Intelligence was published, titled “Copyrightability”. Part 2 can be accessed via this link: Copyright and Artificial Intelligence, Part 2 Copyrightability Report. Notably, the Office provided several key conclusions and recommendations to persons contemplating the copyrightability of AI-generated works in this latest installment to its report. We summarize these determinations and recommendations below:

1. Existing Law Suffices

First, the Office concluded that questions of copyrightability and AI can be resolved under existing law, without the need for legislative change due to the recent surge of AI tools and technology. This means that the Office takes the position that the current legal framework is deemed adequate to address the complexities introduced by AI-generated content, even though AI continues to evolve in this ever-changing technological landscape. The Office notably said in Part 2 of its report: “[B]ecause copyright requires human authorship, copyright law cannot be the basis of protection for works that do not satisfy that requirement”. In sum, human authorship remains at the crux of what is copyrightable, and AI has not changed that.

2. Human Creativity is Essential

Second, copyrights are intended to protect human creativity and originality. The Office has said the use of AI tools to assist human creativity does not affect the availability of copyright protection for the output. It is the Office’s position that copyright protection is available for works where AI is used as a tool to enhance human expression, but not for works generated entirely by AI without human input.

3. Prompting AI Tools is Insufficient to Justify Originality

Third, the Office determined that prompting an AI tool is, alone, insufficient to award copyright protection. The Office finds that prompting of AI technology does not provide sufficient control over the output in order to qualify that output as human authorship. By providing instructions to an AI chatbot, for example, the Office takes the position that the user that submitted that instruction is not an “author” of the resulting output for copyright purposes. Human authored portions of a work, where such author utilized an AI tool to enhance its original expression, are protectable; however, purely AI-generated elements of a work are not.

4. Case-by-Case Analysis for AI-Generated Works

Fourth, and in tandem with the human creativity element summarized in #2 and #3 above, the Office has emphasized that it will assess whether human contributions to AI-generated outputs are sufficient to constitute authorship on a case-by-case basis. The factors the Office will use to analyze such situations include: “(1) the amount and content of the instructions and input prompts by the AI user; (2) the number of generation attempts; (3) the selection by the AI user from multiple output materials; and (4) any subsequent human additions and corrections to the AI-generated work.” This highlights the need for persons utilizing AI to generate a work to carefully consider the specific circumstances surrounding the creation of such work with these factors in mind before applying for copyright protection with the Office.

5. Creative Modifications are Protected

Fifth, the Office has concluded that human authors are entitled to copyright 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. In its report, the Office determined that coordinating and arranging only two or three elements in a work would not generally be sufficient for copyright protection because such adjustments would be de minimis in nature. However, if a user significantly edits, adapts, enhances, or modifies AI-generated output in a way that contributes new authorship to the end product, that output would be entitled to copyright protection. Importantly, such protection would extend only to the material the human author contributed – not to the underlying AI-generated content itself. As mentioned in item #4 above, a determination of whether a human’s contribution to an AI-generated output rises to the minimum standard of originality required by the Office will be determined on a case-by-case basis.

6. Ongoing Monitoring

Sixth, and finally, the Office committed to continue to monitor technological and legal developments to determine whether any of the conclusions it made in Part 2 of its Report on Copyright and Artificial Intelligence should be revisited. This promise to ongoing evaluation ensures that the legal framework the Office uses to justify its positions remains responsive to advancements in AI technology.

Based on these conclusions and recommendations from the Office, we reemphasize the importance of: (a) human authorship, creativity, and originality in relation to copyright; (b) understanding prompting an AI tool is not enough to justify copyright protection; (c) preparing for the Office to scrutinize your copyright application if you utilized AI based on a variety of factors to analyze human vs. AI contributions to the work; and (d) acknowledging purely AI-generated works are not eligible for copyright protection under current law.

By understanding the Office’s position on AI and applying these recommendations, we hope you can better protect your creative works, understand copyright limitations, and navigate the evolving intersection of copyright law and AI. Here at Foster Swift, we are committed to staying informed of any changes in the legal landscape regarding AI and copyright and keeping you updated on such developments. If you have any questions about these matters, please feel free to contact an attorney in Foster Swift’s Business, Technology, Intellectual Property, or Litigation practice groups for more information.

Categories: Artificial Intelligence (AI), Cybersecurity, Intellectual Property, Technology