The US Copyright Office’s new ruling on AI art is here – and it could change everything

Last week, the US Copyright Office released its detailed report and comprehensive guidelines on the issue of copyright protection and AI-generated work.

For a government legal document, it is a fascinating exploration of the intersection of artificial intelligence and the very concept of authorship and creativity. The study’s authors conduct a deep dive, taking in comments from the general public and experts alike, and producing an analysis of what it means to creatively author a work.

Also: How to use Microsoft Image Creator to generate and edit stunning AI images for free

They then explore the issue of whether an AI-generated work versus an AI-assisted work is subject to copyright protection, and what that means not only for individual authors but also for the encouragement of creativity and innovation in society as a whole.

This is the second of what will be a three-part report from the Copyright Office. Part 1, published last year, explored digital replicas, using digital technology to “realistically replicate” someone’s voice or appearance.

Part 3 is expected to be released later this year. It will focus on the issues of training AIs using copyrighted works, aspects of licensing, and how liability might be allocated in cases where a spectacular AI failure can be attributed to training (which sometimes results in litigation).

Copyright in the Constitution

As it turns out, copyright — or at least the protection of the rights of creators — was considered so important by America’s founding fathers that it was listed in the Enumerated Powers clause (Article 1, Section 8) of the US Constitution.  

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

As a matter of priority, the powers to collect taxes and coin money were listed before the copyright clause, but declaring war, raising an army, and maintaining a navy were listed after the protection of creative rights clause.

In the minds of the framers, copyright wasn’t just about the ability to collect royalties and make some cash; it was about promoting the progress of science and (and I love this) the “useful” arts. Silly arts, they didn’t care about. But useful arts, those need protection. I’ll leave it as an exercise for the reader to decide whether to consider blogging like I’m doing here to be “useful” or not!

Also: The best AI image generators

Their point in protecting rights to creativity was to push progress forward, and they recognized that some creators needed incentive to do that — basically, to be able to make a living or build a business based on their creative endeavors.

I’d love to know what Thomas Jefferson and old Ben Franklin would have made of ChatGPT!

Notice of inquiry

Prior to issuing the report detailing the Copyright Office’s determination about AI and copyrights, the agency issued a Notice of Inquiry, where they invited comments on AI-related policy issues.

A Notice of Inquiry, when properly framed and processed, is a great way for a federal agency to involve the public and gain insights from a wide range of individuals and organizations.

The agency asked five key questions that are reflected in their final determination. Those questions were:

1. Does the Copyright Clause in the US Constitution permit copyright protection for AI-generated material?
2. Under copyright law, are there circumstances when a human using a generative AI system should be considered the “author” of the material produced by the system?
3. Is legal protection for AI-generated material desirable as a policy matter?
4. If so, should it be a form of copyright or a separate sui generis [original] right?
5. Are any revisions to the Copyright Act necessary to clarify the human authorship requirement?

The Copyright Office received more than 10,000 comments, about half of which directly addressed the above questions. Throughout the agency’s report, the authors refer to specific comments made by citizens in response to this Notice of Inquiry.

Also: New mystery AI image generator bests Midjourney and DALL-E 3 – how to try it

The full report answers all the questions above, and we’ll cover those answers through the rest of this article.

Is existing law sufficient?

The Copyright Office determined, “Questions of copyrightability and AI can be resolved pursuant to existing law, without the need for legislative change.”

This is a fairly important and heavily emphasized element of the overall report. Basically, the question was whether new legislation would be required to incorporate the AI-related issues, or whether existing law could be applied to the new technology.

The Copyright Office maintained that the existing law has been flexible enough to incorporate new technology, having added other media and methods of creativity over the years.

Also: How to use AI to create a logo for free

The Copyright Office also determined that, “The case has not been made for additional copyright or sui generis protection for AI-generated content.” Sui generis, for those who don’t have a Duolingo Latin subscription, means one of a kind or unique.

Basically, the Copyright Office doesn’t believe that AI-generated copyright issues need unique legislation or protection.

Does tool use disqualify copyright protection?

The Copyright Office determined, “The use of AI tools to assist rather than stand in for human creativity does not affect the availability of copyright protection for the output.”

In other words, if you choose to use a computer keyboard to write an article instead of a pen and ink, you can still copyright your writing. The issue at hand is whether the technology sufficiently separates the author from their creation such that the creation isn’t human-inspired or driven.

Also: What to know about DeepSeek AI, from cost claims to data privacy

We’ll come back to this question for more comprehensive generative AI, but the Copyright Office was clear that a tool used to help creativity (like, for example, an automatic masking tool in a video editor) is not, itself, a disqualifying factor.

Can copyright protect AI-generated material?

The Copyright Office made two related determinations here:

Copyright protects the original expression in a work created by a human author, even if the work also includes AI-generated material.

Copyright does not extend to purely AI-generated material, or material where there is insufficient human control over the expressive elements.

At the core of their determination is existing copyright law, which the Office does not believe needs to be modified for the case of generative AI.

Existing copyright law is for the benefit of humans. As a result, they believe that whatever work is copyrighted must have been substantially created by a human, not by another entity.

Also: Are ChatGPT Plus or Pro worth it? Here’s how they compare to the free version

What this means is that the bulk of the creative process must have gone through the human thought process and human activity, as opposed to the bulk of the creative process being created or generated by artificial intelligence.

Can you copyright the output of prompts?

The official title of the head of the US Copyright Office is Register of Copyrights. Way back in 1965, long before generative AI was anything more than an idea in an Isaac Asimov novel, then Register of Copyrights Abraham Kaminstein did a bit of a deep dive into considering the relationship between human authorship and machine generation. He said:

The crucial question appears to be whether the “work” is basically one of human authorship, with the computer merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine

Using this as precedent, the Copyright Office determined that prompts, just on their own, do not show enough human workings to be protected by copyright. The determination is, “Based on the functioning of current generally available technology, prompts do not alone provide sufficient control.”

What about human/AI collaborations?

Here, the issue becomes a bit of a challenge. The Copyright Office, in the report, stated:

Where AI merely assists an author in the creative process, its use does not change the copyrightability of the output. At the other extreme, if content is entirely generated by AI, it cannot be protected by copyright. Between these boundaries, various forms and combinations of human contributions can be involved in producing AI outputs.

Copyright is something of a you’ll-know-it-when-you-see-it sort of protection. This is why copyright disputes end up in court on a regular basis. There are specific factors, though. For example, in Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 US 340 (1991), the US Supreme Court ruled that ideas or facts, of themselves, are not protectable by copyright law.

Additionally, the mere act of doing hard work to create something does not justify copyright. The court determined that “sweat of the brow” wasn’t enough to qualify. But almost any creative effort on the part of a human does open the door to protection.

The court stated, “The requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, ‘no matter how crude, humble or obvious’ it might be.”

Also: OpenAI launches new o3-mini model – here’s how free ChatGPT users can try it

In this context, the Copyright Office ruled that current law allows for determinations on whether there’s a humble or crude spark of human creativity. The report stated, “Whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analyzed on a case-by-case basis.”

But what about creative choices using a given medium?

This issue was debated over a century ago, in 1884. In Burrow-Giles Lithographic Company v. Sarony, 111 US 53 (1884), the US Supreme Court examined whether a machine-produced image, like a photograph, could be considered the result of human creativity.

Keep in mind that a photograph is not created by human hands. If anything, it is created by light, and electronics or chemicals. There are some optics involved as well.

The image created is the result of light during a very small fraction of a second, processed by what is essentially a machine. Unlike in 1884, our images are usually stored by computer.

The only participation of a human in a photograph is choosing where to point the camera, perhaps what lens to put on the camera, which image to present to the public, and when to take the picture. In the case of smartphone pictures, as well as many point-and-shoot standalone cameras, the human involvement is rarely more than a millimeter’s flex of an index finger.

The Court ruled, however, that there were creative actions undertaken by the photographer, including posing a subject, costuming, set design, and other aspects of portraiture. For a nature photographer, control involves choosing the direction of the photograph and the time of day. For a photojournalist, it’s getting to the location of the action and finding the one evocative microsecond that tells a story.

Also: This new Google AI tool lets you easily generate images from other photos – no prompt required

The Copyright Office reflected this in its determination of authorship and creativity. The Office stated, “Human authors are entitled to copyright in their works of authorship that are perceptible in AI-generated outputs, as well as the creative selection, coordination, or arrangement of material in the outputs, or creative modifications of the outputs.”

So, a prompt on its own isn’t worthy of protection. Prompting mixed with creativity might be, but will be adjudicated on a case-by-case basis.

OK, fine. Let’s put that to the test with a little thought experiment.

Case study: the painting “Oblivious”

The above artwork, called Oblivious, was a project I did using Midjourney and Adobe Photoshop, which I documented in this article. Midjourney and Photoshop were, essentially, my creative medium, but the vision was my own.

I wanted to create a work evocative of Hopper’s Nighthawks, but that could stand on its own. I called it Oblivious because the man quite possibly doesn’t even notice that there’s a giant white rabbit just a few feet to his right.

It’s an allegory for the idea that we’re so engrossed in our phones that we miss even the most obvious things around us. You also sense that the man would rather just tap on his phone than go in and get a nice piece of pie or a hot beverage, putting off creature comforts in favor of whatever fascinates him so much on that screen.

I also love how the rabbit represents change and newness but conveys a deep sense of longing, because he can never be inside and part of the diner milieu.

This was an image that was created based on my wanting to tell a story. It combined the AI’s ability to create the graphic and my ability to guide it to what I envisioned.

Is this something where the AI did all the work and all I did was paste in some words? Or do I deserve any credit for the mood, the commentary, and the message the art shares with the observer? Why would my creativity using the medium of Midjourney count for any less than my creativity using my favorite Sony camera?

Also: How to use Gemini to generate higher-quality AI images now – for free

One of the Copyright Office’s concerns is that choosing from a variety of sources or choosing from a variety of generated pictures is not creating. I would argue that a photographer does that as part of his or her craft. For example, a photographer might take 100 pictures and choose just one to submit to a magazine or for a contest.

Choosing, the act of deciding between representations, has long been part of the creative process, as I showed through the choices I documented in the article about Oblivious.

Why should choosing a photo out of hundreds or thousands of other images shot during a photoshoot be any more the act of human creativity than using Midjourney with a carefully written text prompt, getting back four variations, and choosing the best variation?

Personally, I consider Oblivious to be my work of art because it is the result of a vision that I started with and refined as I was executing the creative process.

The only difference was that instead of my medium being a brush and paint, or camera and lens, my medium was articulating to an AI what I wanted to see and how I wanted it to place things. It’s still my work of art.

The future of copyright and AI

I think we’re going to see a number of issues (and a ton of litigation) where this gray area comes into effect, where there is some question of whether a work was mostly human-authored, mostly AI-authored, or a collaboration of both human and AI.

I expect the camera analogy and all the established case law on copyrighting photographs to strongly influence future determinations of AI copyright litigation.

Also: Midjourney’s AI-image generator website is now officially open to everyone – for free

What do you think? Do you think the Copyright Office made the right determination? Do you think the result of prompting should be copyrighted? Let us know in the comments below.

---

You can follow my day-to-day project updates on social media. Be sure to subscribe to my weekly update newsletter, and follow me on Twitter/X at @DavidGewirtz, on Facebook at Facebook.com/DavidGewirtz, on Instagram at Instagram.com/DavidGewirtz, on Bluesky at @DavidGewirtz.com, and on YouTube at YouTube.com/DavidGewirtzTV.