Copyrightability

This blog focuses on the copyrightability of AI-created content and requirements to disclose and differentiate between AI-Generated, AI-Assisted and Human Authored content. Why is some AI content not copyrightable and other AI content is copyrightable?

Our understanding of the nuances of copyright law comes from having researched and obtained the rights to use thousands of copyrighted sources. We have been making presentations on “copyright basics” since 2010. Our award-winning guide “Copyright Clearance for Creatives” gets into the details of copyright law.

The US Copyright Office has published several major publications such as annual reports, policy studies, topical reports, and entries into the Federal Register that identify the rules, regulations, policies, and procedures related to the copyrightability of AI-created content.

We have heavily been using AI assistance to research the copyrightability of AI-created content. The US Copyright Office has disclosure requirements when applying for copyright registration. It has been a challenge to distill this into something that is easy to get your head around.

 

Relevant Publications

The following publications identify and clarify the US Copyright Office’s positions regarding artificial intelligence:

Compendium of U.S. Copyright Office Practices, Third Edition. January 28, 2021. This 1,396-page publication is the governing administrative manual for copyright registration and recordation on and after 1/28/2021.

Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence. March 16, 2023.
This is a 6-page statement of policy “to clarify its practices for examining and registering works that contain material generated by the use of artificial intelligence technology.”

Application Process for Registration of Works with Artificial Intelligence-Generated Content. Transcription from Online Webinar on June 28, 2023.
This 11-page webinar transcript discusses how the US Copyright Office examines a work that contains AI-generated material. The USCO has historically had four categories of unclaimable material that cannot be copyrighted. They are now treating AI-generated content as the fifth category of unclaimable material.

Copyright and Artificial Intelligence, Part 1: Digital Replicas. July 31, 2024. This 57-page publication addresses “the use of digital technology to realistically replicate an individual’s voice or appearance.”

Copyright and Artificial Intelligence, Part 2: Copyrightability.  January 29, 2025. We have cited this 41-page publication extensively in our presentation “Copyright in the Age of Artificial Intelligence.”

Copyright and Artificial Intelligence, Part 3: Generative AI Training. Pre-publication Version. May 9, 2025. This 108-page report contains 588 footnotes. The section on “Fair Use” is particularily noteworth, given the number of lawsuits against AI platforms for copyright infringement. The courts will determine what is fair use and what is not.

 

“When you come to a fork in the road, take it.”

Yogi Berra famously said, “When you come to a fork in the road, take it.” This saying resonates with the choices we faced during the copyright registration process, as described in the first three blogs of this series.

In our experience, the “fork in the road” analogy can be expanded to represent three distinct paths in the realm of copyright and artificial intelligence:

  • Human Authorship: This is the traditional and well-understood route, where works are created entirely by humans. These works are clearly eligible for copyright protection.
  • AI-Generated Materials: This path involves works created solely by artificial intelligence, with minimal human input—typically just the submission of prompts. According to current U.S. Copyright Office policy, such works are not eligible for copyright protection. This policy is currently being challenged in court.
  • AI-Assisted Materials: This is the third path, representing a grey area where humans and AI collaborate on a work. The eligibility of these works for copyright is evaluated on a case-by-case basis, depending on the extent and nature of human creative involvement.

Just as Yogi Berra’s advice suggests making a choice when faced with multiple options, those navigating copyright registration must carefully consider which path their work follows—human authorship, AI-generated, or AI-assisted. Each option has different implications for copyright eligibility.

 

Illustration of Copyrightability

We have identified a simple and hopefully easily understood way to graphically explain these options. Figure 1 captures our understanding of the copyrightability of AI-created content, and the standalone illustration is copyrightable in our view. We filed an application to register the copyright for the illustration as a standalone 2-dimensional artwork to legally confirm this is sufficiently creative to warrant copyright protection. We shall see if the US Copyright Office concurs.

Copyrightability

Figure 1 illustrates a black and white gradient representation of the range of copyrightability of materials that may or may not be eligible for copyright protection under existing US copyright laws.

  • Shown on the left, AI-Generated materials with minimum human input (e.g. prompts only) in the creation of the output are not copyrightable.
  • Shown on the right, materials created solely by Human Authorship is copyrightable if sufficient originality and creativity is demonstrated.
  • In the middle, AI-Assisted materials constitute a large grey area where the copyrightability of the AI output is made on a case-by-case basis.

Look for additional blogs that discuss AI-Generated and AI-Assisted materials.

@TheCopyrightDetective is the handle used to identify Dr. C. Daniel Miller on social media, and the name is federally registered as a trademark.

#TheCopyrightDetective