AI IP Year in Review – The U.S. Copyright Office’s Position on the Copyrightability of Works Made with the Assistance of Generative AI

Since platforms like Midjourney and DALL-E became popular, using text-to-image models to generate “AI art” has surged, making it increasingly difficult to distinguish between AI-generated art and human-created works. This rapid evolution in art generation challenges global intellectual property law. Recognizing these challenges, the Copyright Office issued “Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence” (“Guidance”) in March 2023, clarifying copyrightability requirements for works that contain AI-generated content. Despite its recent issuance, the Guidance reflects a longstanding principle of U.S. copyright law: some human involvement is necessary for a work to be eligible for copyright protection.

I. Foundations of U.S. Copyright Law’s Human Authorship Requirement

Congress and the Human Authorship Requirement

Human creativity has always been central to U.S. copyright law. The Constitution¹ bases copyright on the premise that exclusive rights will incentivize individuals to create. The Copyright Act of 1909 explicitly required that a “person” secure copyright for “his work.”² This understanding carried forward into the current 1976 Copyright Act.³

Courts and the Human Authorship Requirement

The landmark 1884 Supreme Court case Burrow-Giles Lithographic Co. v. Sarony considered whether the Copyright Act could extend protection to photographs, even though such works were not expressly listed as a work of authorship in the Act. The Court upheld the copyrightability of the photograph Oscar Wilde, No. 18, emphasizing that its creator demonstrated originality through choices in posing, lighting, and setting.⁴ By contrast, the Court clarified that works produced by “mere mechanical reproduction…involves no originality of thought” is not copyrightable.⁵

Later cases reinforced this principle. In Urantia Foundation v. Maaherra, the Ninth Circuit ruled that the human selection and arrangement of divine revelations in the Urantia Book met the low creativity threshold for copyright protection.⁶ Conversely, courts have denied protection to works created solely by non-human entities or natural forces. For instance, in Naruto v. Slater, a Ninth Circuit district court deemed a selfie taken by a monkey ineligible for copyright. The court reasoned that the “Copyright Act does not ‘plainly’ extend the concept of authorship or statutory standing to animals” and “[t]he Supreme Court and Ninth Circuit have repeatedly referred to ‘persons’ or ‘human beings’ when analyzing authorship under the Act.”⁷ Additionally, another Ninth Circuit district court found that a book containing divine revelations that were attributed to “a spirit” could not be copy-righted.⁸ Similarly, the Seventh Circuit in Kelley v. Chicago Park District found that a garden “designed and planted by an artist,” was not copyrightable because the garden “owes most of its form and appearance to the natural forces.”⁹

The U.S. Copyright Office and the Human Authorship Requirement

Aligning with court rulings, the U.S. Copyright Office has long required human authorship for copyrightability. The first edition of the Compendium of U.S. Copyright Office Practices (Compendium I), published in 1967, states that “[s]ince the specific outlines and contours of the patterns and shapes formed by the liquid petroleum do not owe their origin to a human agent, it is not possible to claim copyright in such patterns and shapes.”¹⁰ Subsequent editions reiterated this stance, maintaining that authorship requires human origin^.11 The second edition of the Compendium (Compendium II), published in 1984, followed suit, providing that “[t]he term ‘authorship’ implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable.”¹² However, none of the editions, including the current edition explicitly addresses how works containing AI-generated content should be evaluated.

II. Application of the Human Authorship Requirement to Works Including AI-Generated Content (Before the Guidance)

“A Recent Entrance to Paradise”

In February 2022, the Copyright Office Review Board issued its first publicly available decision involving an AI-generated work, “A Recent Entrance to Paradise.”

Steven Thaler, who owned the work, identified its author as the “Creativity Machine,” an algorithm he created. The Copyright Office denied registering the work, citing the absence of a “nexus between the human mind and creative expression” required for copyright protection.¹³ The District Court of D.C. upheld this decision, and the case is currently on appeal.¹⁴ 

“Zarya of the Dawn”

The Copyright Office faced another work involving AI-generated content in 2023. Kristina Kashtanova’s graphic novel “Zarya of the Dawn” initially received copyright protection.

However, after learning that the AI platform Midjourney generated all the images, the Copyright Office canceled the registration. It then issued a registration confirming a limited copyright in the novel’s text and the creative arrangement of the text and (AI-generated) images. The Office found that Kashtanova’s iterative process of prompting Midjourney did not constitute the same level of authorship as in the human-directed photograph in Burrow-Giles because “Midjourney’s specific output cannot be predicted by users.”¹⁵ However, the Board noted that substantive edits to AI-generated images could qualify as human authorship.¹⁶

III. The Copyright Registration Guidance

Human Authorship Requirement

The Guidance reaffirms the long-standing requirement of human authorship for copyrightability. However, works created with the help of technology—including AI —may still qualify for copyright protection if a “human had creative control over the work’s expression.”¹⁷ The Guidance clarifies that when “the AI technology determines the expressive elements of its output, the generated material is not the product of human authorship . . . [and therefore] not protected by copyright.” However, if a human “select[s] or arrange[s] AI-generated material” or “modif[ies] material originally generated by AI technology,” those human-authored aspects may qualify for copyright protection. Determinations of copyrightability and registrability of AI-assisted works are made on a case-by-case basis.¹⁸

Submitting Applications for Works Including AI-Generated Content

Applicants seeking to register works containing AI-generated content must specify which aspects are human-generated and disclaim AI-generated aspects. For example, in a graphic novel with human-authored text and AI-generated illustrations, the applicant may claim authorship of the text but must disclaim the illustrations in the “Limitations of the Claim” section of the application. Additionally, AI tools or their creators may not be listed as authors or co-authors.

Correcting Pending or Registered Applications for Works Including AI-Generated Content

For pending copyright applications involving AI-generated content, the Guidance instructs applicants to inform the Copyright Office’s Public Information Office (1-877-476-0778) about the AI-generated aspects of the works. For already registered works, applicants should submit a supplementary registration application to amend the original record. The supplementary registration application should clarify which parts of the works are human-authored and disclaim the AI-generated portions.

IV. Implications of the Guidance on Copyrightability and Registrability of AI-Generated Content

Following the issuance of the Guidance, the Board rendered decisions on two works containing AI-generated content: “Théâtre D’opéra Spatial” and “SURYAST.”

“Théâtre D’opéra Spatial”

Jason Allen attempted to register “Théâtre D’opéra Spatial,” an image created through an iterative process using Midjourney. After revising his prompts over 624 times to create the image pictured on the left below, he used Adobe Photoshop to modify the AI-generated output into a final image pictured on the right on the following page.¹⁹

The Copyright Office denied registration, and the Board affirmed. The Board explained that refining prompts fed to AI does not constitute copyrightable authorship of the resulting image because the “traditional elements of authorship are determined and executed by the technology—not the human user.”²⁰ While acknowledging that Allen’s subsequent modifications could qualify for copyright protection, his refusal to disclaim AI-generated elements prevented the Board from determining whether the elements attributable to Allen were copyrightable.²¹

“SURYAST”

Photographer Ankit Sahni used the AI tool RAGHAV to create “SURYAST.” Sahni inputted Van Gogh’s Starry Night painting as a “style image” and his original photo as the base image, with a “variable value determining the amount of style transfer.”²² Sahni applied to register the resulting image shown below, listing himself as the author of “photograph, 2-D artwork” and RAGHAV as the author of “2-D artwork.”²³

The Copyright Office denied registration, and the Board affirmed. The Board found that the expressive elements of the work were determined by RAGHAV, not Sahni, as “Sahni did not control where [certain] elements would be placed, whether they would appear in the output, and what colors would be applied to them—RAGHAV did.”²⁴ The Board noted, however, that Sahni could apply to register his original photo with the Copyright Office.

Broader Implications

The Guidance and recent Board decisions emphasize the necessity of human contribution to the expressive elements of a work for copyright protection. Works listing AI as an author or co-author are not registrable in the U.S., contrasting with the Indian Copyright Office, which recognized RAGHAV as a co-author of “SURYAST.”²⁵ To improve the copyrightability of AI-assisted works in the U.S., creators should incorporate and document substantial human-originated expressive elements while disclaiming AI-generated content.

The evolution of AI-generated works highlights the growing tension between technological advancements and copyright law’s longstanding human authorship requirement. As cases exemplify the challenges in applying traditional copyright principles to new forms of creativity, legal and policy developments will be necessary to clarify AI’s place in copyright law.

[1] Congress has the authority to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” U.S. CONST. art. 1, § 8, c. 8.
[2] Copyright Act of 1909, ch. 320, § 9, 35 Stat. 1075, 1077 (1909) (repealed 1976).
[3] H.R. Rep. No. 94-1476, 51 (1976).
[4] Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 60 (1884).
[5] Id. at 59.
[6] Urantia Found. Maaherra, 114 F.3d 955, 959 (9th Cir. 1997).
[7] Naruto v. Slater, No. 15-cv-04324-WHO, 2016 WL 362231, at *3 (N.D. Cal. Jan. 28, 2016), aff’d, 888 F.3d 418 (9th Cir. 2018).
[8] Oliver v. Saint Germain Foundation, 41 F.Supp. 296 (S.D. Cal. 1941).
[9] Kelley v. Chicago Park Dist., 635 F.3d 290, 304 (7th Cir. 2011).
[10] U.S. COPYRIGHT OFF., COMPENDIUM OF COPYRIGHT OFFICE PRACTICES, FIRST EDITION, 2.8.3.I.a.1.(b) (rev. 1973) https://copyright.gov/history/comp/compendium-one.pdf
[11] See U.S. Copyright Off., Compendium of Copyright Office Practices, Second Edition, 202.02(b) (1984) https://www.copyright.gov/history/comp/compendium-two.pdf (“The term ‘authorship’ implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable.”)
[12] Id.
[13] Second Request for Reconsideration for Refusal to Register A Recent Entrance to Paradise (Correspondence ID 1-3ZPC6C3; SR #1-7100387071), at 4 (U.S. Copyright Off. Rev. Bd. Feb. 14, 2022) (refusal affirmed), https://www.copyright.gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf
[14] Thaler v. Perlmutter, 687 F.Supp.3d 140 (D.D.C. 2023).
[15] Zarya of the Dawn (Registration # VAu001480196), at 9 (U.S. Copyright Off. Rev. Bd. Feb. 21, 2023), https://www.copyright.gov/docs/zarya-of-the-dawn.pdf
[16] See id. at 12.
[17] Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16190, 16193 (Mar. 16, 2023) [hereinafter Guidance].
[18] Guidance at 16192.
[19] Second Request for Reconsideration for Refusal to Register Théâtre D’opéra Spatial (SR # 1-11743923581; Correspondence ID: 1-5T5320R), at 6 (U.S. Copyright Off. Rev. Bd. Sept. 5, 2023) (refusal affirmed), https://www.copyright.gov/rulings-filings/review-board/docs/Theatre-Dopera-Spatial.pdf 
[20] Id. at 7 (quoting Guidance at 16192).
[21] Id. at 8 (“[T]he Office cannot register Mr. Allen’s human contributions if he does not limit his claim with respect to the AI-generated material.”)
[22] Second Request for Reconsideration for Refusal to Register SURYAST (SR # 1-11016599571; Correspondence ID: 1-5PR2XKJ), at 2 (U.S. Copyright Off. Rev. Bd. Dec. 11, 2023) (refusal affirmed), https://www.copyright.gov/rulings-filings/review-board/docs/SURYAST.pdf
[23] Id.
[24] Id. at 7.
[25] Sukanya Sarkar, Exclusive: India recognizes AI as co-author of copyrighted artwork, MANAGINGIP, (Aug. 5, 2021), https://www.managingip.com/article/2a5czmpwixyj23wyqct1c/exclusive-india-recognises-ai-as-co-author-of-copyrighted-artwork

This article appeared in the 2024 AI Intellectual Property Year in Review: Analysis & Trends report.