Intellectual Property Blog

Can AI-Generated Work Be Copyrighted? New Guidance from the Copyright Office Provides Clarity

In January 2025, the Copyright Office released Part 2 of its regulatory guidelines on copyright protection and artificial intelligence (AI). Part 1 of the report, which addressed the legal and policy issues related to AI and copyright, was released on July 21, 2024. Part 2, titled "Copyrightability," focused on the statutory requirement that a work must be created by "human authorship" and examined whether this requirement is met when works contain elements generated by AI.

Part 2 acknowledged that specific uses of AI do not negate works’ copyrightability; however, it noted that uses where the AI acts as a “stand-in” for human creativity pose a separate copyrightability analysis centered on the amount of human control exercised over the AI system.

Part 2 analyzed prompt-based AI, which involves creating works by inputting specific prompts into an AI system that generates the desired output. The Office indicated that a future may arise in which prompts could "sufficiently control expressive elements in AI-generated outputs to reflect human authorship." Nevertheless, the current lack of direct control by authors over these AI systems results in a denial of copyright protection for the produced works. In summary, Part 2 concluded that the disconnect between the prompts and the resulting outputs diminishes the copyrightability of prompt-based works, as the user does not possess adequate authorial control over the expressive elements present in the final creation.

The second use of AI discussed in Part 2 focuses on AI systems that modify or translate original works, referred to as “expressive inputs.” Unlike the conclusion regarding prompt-based uses, Part 2 does not provide a clear guideline for determining when expressive inputs fulfill the human authorship requirement necessary for copyright eligibility. The Office indicated that registration is limited to “unaltered human pictorial authorship,” which must be “clearly perceptible” in the work and “separable from the non-human expression.” However, the discussion lacks a method for quantifying or defining what constitutes “clearly perceptible.”

The most guidance offered compares expressive inputs to derivative works. The Office noted that “[j]ust as derivative work protection is limited to the material added by the later author, copyright in this type of AI-generated output would cover the perceptible human expression.” The only definitive statement regarding the copyrightability of expressive inputs is that copyright protection “may also cover the selection, coordination, and arrangement of human-authored and AI-generated material.”

Furthermore, Part 2 analyzed an author’s modification and arrangement of AI-generated content. The Office concluded that modifying and arranging AI-generated content can be copyrightable because this process "enables the user to control the selection and placement of individual creative elements." As a general rule, the selection, coordination, and arrangement of AI-generated material in a creative manner provides copyright protection for the final output as a whole. Similar to expressive inputs, this copyrightability is limited to the material contributed by the human author and does not extend to the underlying AI-generated content itself.

However, an essential consideration when evaluating any work based on the arrangement or selection of content is the question of originality. The Office noted that whether such modifications or arrangements of AI-generated material meet the minimum standard of originality will depend on a case-by-case determination.

The Office has announced that it will soon release Part 3 of its AI guidance. This part will offer additional information on the copyrightability of materials used to train generative AI and will address the legal implications of using copyrighted works to train AI models. The exact release date is still to be determined.

Mari-Elise Paul is a Member of McBrayer PLLC and Chair of the Intellectual Property practice group, based in the firm's Louisville office. Her practice encompasses all facets of intellectual property, including clearance, prosecution, enforcement, and litigation. Mrs. Paul can be reached at mpaul@mcbrayerfirm.comor (502) 888-1821.

Grace Garner is a 2024-2025 Summer Associate with McBrayer's Louisville office.

Services may be performed by others. This article does not constitute legal advice.

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Tags: AI, Copyright