Legal Alert

Copyright Office Issues Report on Copyrightability of AI Content

by Thomas B. Sullivan and Catherine I. Seibel
January 31, 2025

Summary

On January 29, 2025, the U.S. Copyright Office released a report concerning artificial intelligence (AI) and copyright law, focused on the scope of copyright protection for content generated in whole or in part by AI.

The Upshot

  • The Copyright Office’s second report in its Copyright and Artificial Intelligence series focuses on how the use of AI in creating a work impacts the scope of copyright protection.
  • The Office concludes that no new laws are needed to resolve questions of copyrightability and artificial intelligence.
  • Copyright protects the original expression in a work created by a human author, but it does not extend to works or portions of works where a human did not sufficiently control the expressive elements.
  • Creation of text “prompts” to an AI system is insufficient to make a human the author of outputs.
  • Humans can still claim authorship over works where AI was used as a tool, or where a human makes expressive modifications, or arranges and selects AI-generated works.

The Bottom Line

The Copyright Office’s report provides additional guidance on the boundary between copyrightable human creative expression assisted by AI, and AI-generated work, which is not protectable by copyright. Copyrightability of a particular work involving the use of AI is still a fact-intensive question, and Ballard Spahr lawyers closely monitor this area of law to advise clients on the scope of copyright protection for creative works.

On January 29, 2025, the U.S. Copyright Office released the second portion of its report Copyright and Artificial Intelligence: “Part 2: Copyrightability.” This report addresses the scope of copyright protection available for outputs created using generative artificial intelligence. Part 2 reinforces the Office’s earlier guidance for the scope of copyright protection in AI-generated materials: copyright protects the original expression in a work created by a human author, but does not extend to works or portions of works where a human had insufficient control over the expressive elements. Specifically, the Office rejected the argument that the creation of text “prompts” to AI systems alone are sufficient at this point to make a human the author of such outputs. However, it said it was more open to cases where a human-created work was inputted into the AI system to be modified, as well as situations where AI-generated works were subsequently modified by human beings. 

The Copyright Office launched its artificial intelligence initiative in 2023 with the goal of reviewing copyright law and policy issues regarding artificial intelligence. As part of the initiative, the Office committed to examine the scope of copyright protection in AI-generated works and the use of copyrighted materials in training AI models. 

In March 2023, the Office issued a policy statement with guidance for registering works that incorporated AI-generated content. While that policy statement was primarily focused on practical advice for properly disclosing the use of generative artificial intelligence, the Office grounded that guidance in the fundamental legal principle that human involvement is necessary to obtain copyright protection for expressive content.  That principle is reiterated and expanded upon in Part 2 of the Office’s Report, created following an extensive process where the Office sought comments from stakeholders. More than 10,000 comments were formally submitted to the Office on various copyright issues raised by artificial intelligence, and the Office reports that at least half of those comments concerned copyrightability of AI-generated works. 

Part 1 of the Copyright and Artificial Intelligence Report concerned digital replicas, as artificial intelligence has enabled rapid proliferation of replicas like “deepfakes.” The Office reviewed the existing legal frameworks that protect unauthorized digital replicasincluding the Copyright Act, the Lanham Act (the federal trademark statute), and state rightsand ultimately concluded that a new federal law is needed to sufficiently protect individuals from the appropriation of their likeness.

In contrast to the conclusion drawn in Part 1, the Office concludes in Part 2 that no new laws are needed to resolve questions of copyrightability and artificial intelligence. Instead, reliance on fundamental copyright principles regarding human authorship, protection of expressions over ideas, and requirements for originality should suffice as a legal framework to resolve questions of copyrightability. While emphasizing the case-by-case nature of the copyrightability question, the Report does draw some boundaries around the copyright protection in certain AI applications. The Report notes that no court has recognized copyright in material created by non-humans. It applies that principle to conclude that purely AI-generated material is squarely not protectable. 

With respect to text prompts in particular, the Report concludes that they are insufficient to constitute human control, at least based on currently available generative artificial intelligence, as the AI system is required to interpret the user’s directions and the same prompt can therefore produce many different outputs. The Report also rejects the idea that repeatedly revising prompts is sufficient to create authorship, noting that ultimately “[n]o matter how many times a prompt is revised and resubmitted, the final output reflects the user’s acceptance of the AI system’s interpretation, rather than authorship of the expression it contains.” However, the Copyright Office notes that a “different conclusion may be called for” in the future if technological advances allow users to have increased control over expressive elements in the outputs. In addition, a sufficiently detailed and creative prompt may be its own copyrightable literary work.

On the other hand, the Report takes a more favorable view toward works where the user provides the AI system with a human-created input and asks the AI system to modify it, such as where the system is asked to create a photorealistic image based on a hand-drawn illustration or to translate a story written in the first person to the third person perspective. The Office notes that, at least to the extent the human created input is perceptible in the output, it would be protected by copyright. The Report also notes that human authors can still claim protection over the arrangement and selection of AI-generated works, or to any expressive modifications that are made to an AI-generated work. 

The Office is also open to other uses of AI. Humans can use artificial intelligence as a tool without impacting the copyrightability of a work, like color correction in a motion picture or Auto-tune in a musical recording. Using AI to assist in brainstorming or as a reference also does not affect the copyrightability of a resulting human-authored work. In the words of the Office, “there is an important distinction between using AI as a tool to assist in the creation of works and using AI as a stand-in for human creativity. While assistive uses that enhance human expression do not limit copyright protection, uses when an AI system makes expressive choices require further analysis.” 

The Office will release Part 3 at a later date and will focus the concluding section on the training of AI models on copyrighted works, licensing considerations, and allocation of any liability for copyright infringement that may arise from AI models.

Ballard Spahr lawyers closely monitor developments concerning artificial intelligence and intellectual property, including copyright. Our AI Legislation and Litigation Tracker provides a comprehensive view of AI-related legislative activities and important information about litigation matters with significant potential impact on clients.

Subscribe to Ballard Spahr Mailing Lists

Get the latest significant legal alerts, news, webinars, and insights that affect your industry. 
Subscribe

Copyright © 2025 by Ballard Spahr LLP.
www.ballardspahr.com
(No claim to original U.S. government material.)

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, including electronic, mechanical, photocopying, recording, or otherwise, without prior written permission of the author and publisher.

This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.