On January 29th, 2025, the US Copyright Office published Part Two of its Copyright and Artificial Intelligence report, which addresses the copyrightability of works created using generative Artificial Intelligence (AI). Prior to issuing the report, the Copyright Office issued a Notice of Inquiry where they invited comments on AI-related policy issues. The Copyright Office received over 10,000 comments from individuals across all 50 states and 67 countries, reflecting widespread interest in AI-related copyright policy.
The Report
As AI technology continues to evolve, the question of whether and to what extent AI-assisted creations qualify for copyright protection has become increasingly significant.
The Report directly addresses this issue, acknowledging that the assistance of AI tools would not affect the availability of copyright protection, however it “does not extend to purely AI-generated material, or material where there is insufficient human control over the expressive elements.”
AI-Assisted Creativity vs. AI-Generated Material
For decades, creators have used computer-assisted technology to enhance and modify their artistic expression (such as CGI in film, or virtual instruments and pitch correction in music). The Copyright Office report clarifies that while AI tools that support and enhance human creativity “do not limit copyright protection,” situations where the AI system itself “makes expressive choices require further analysis.” This suggests that works incorporating AI-generated elements may qualify for copyright protection if there is meaningful human involvement, but each case “must be analyzed on a case-by-case basis.”
What Constitutes “Sufficient Human Control”?
The report does not provide an exact definition of “insufficient human control,” but makes clear that prompts alone do not provide sufficient human control. No matter how detailed and specific a prompt may be or how many times it is revised, AI generates an unpredictable range of possible outputs, with the final result ultimately “reflect[ing] the user’s acceptance of the AI system’s interpretation.” Unlike AI-generated materials, a human author is “principally responsible for the execution of the idea and the determination of the expressive elements in the resulting work.” The report illustrates this distinction with examples like Jackson Pollock’s paintings or nature photography, where the artist’s choices shape the final work.
What’s Next?
As AI technology continues to evolve, so will copyright standards. The final forthcoming Part Three of the Report will address “legal implications of training AI models on copyrighted works, licensing considerations, and the allocation of any potential liability.” Additionally, the recent Thomson Reuters case highlights the ongoing legal challenges surrounding AI and copyright, particularly regarding unauthorized use of proprietary content to train AI models, potential violations of database rights, and fair use defenses in the context of AI-generated outputs. This case underscores the broader tension between intellectual property protections and AI innovation, offering further insight into these evolving issues.
For creators, businesses, and legal professionals navigating the complexities of AI and copyright, staying informed about these developments is crucial. If you have questions about protecting your work in an AI-driven landscape, please contact us to speak with a member of our team.
