U.S. Copyright Office Issues Report on Artificial Intelligence and Copyrightability

A Sidley Austin post reports that the U.S. Copyright Office on January 29, 2025 published its Copyright and Artificial Intelligence report, Part Two. It follows a Notice of Inquiry issued in 2023, and the first part, published in July 2024, dealt with digital replicas. This installment covers whether works involving AI can be protected by copyright. About half of the 10,000-plus responses to the inquiry addressed that question.

The Office concludes that when a person uses AI only as an aid, to enhance human expression rather than substitute for it, the resulting work's eligibility for protection is unaffected. Examples include color correction, or using generative tools to brainstorm songs.

Under current law, the Office finds that material generated purely by AI in response to prompts cannot be protected. It relied on a 2023 court decision, Thaler v. Perlmutter, which upheld its refusal to register an image created autonomously by an algorithm. Prompts alone, it reasons, give too little human control, since models do not reliably follow instructions, fill gaps and return different outputs to the same prompt. The Office adds that the conclusion reflects present technology, and later advances could alter it.

Protection may be available where a person supplies expressive input, such as a hand-drawn illustration that remains perceptible in the output, though coverage would extend only to the perceptible human expression. A sufficiently creative selection, arrangement or alteration of AI output can also qualify, as with the comic book Zarya of the Dawn. Interactive tools that let users control placement of individual creative elements may yield protectable results, judged case by case. The Office did not endorse legislative change, citing existing incentives for developers and worry that AI content could displace human work.