By Tracey Truitt – Sandberg Phoenix & von Gontard P.C.

Mar 1, 2025

On Jan. 29, the U.S. Copyright Office issued its long-awaited second installment about copyrights and artificial intelligence. This was the follow-up to the initial guidance provided in March 2023. In this report, the Copyright Office addressed the copyrightability of outputs generated by AI systems and was based on existing statutory law, current caselaw, and over 10,000 public comments and additional research. The goal was to explore the necessary amount of human contribution for copyright protection and the implications of AI in the creative process.

In brief, the Copyright Office confirmed that copyright protection in the U.S. requires human authorship, a principle that is rooted in the U.S. Constitution and reinforced by countless court decisions. Thus, the one bright line rule coming out of this report is that purely AI-generated content cannot be copyrighted. However, this obviously leaves a lot of gray area. What about everything else that uses AI to generate a work that would normally be covered by copyright protection if it were made solely by a human?

Considering that basic copyright law has survived the invention of cameras, sound recordings, video recordings, computers, and the internet, copyright law has proven to be very adaptable to new technologies. This new guidance confirms that the future will continue to rely on this adaptability. With respect to the use of AI in producing outputs that are protectable through copyright law, the guidance addressed AI outputs in three scenarios:

1. Prompts that instruct an AI system to generate an output
2. Expressive inputs that can be perceived in AI-generated outputs
3. Modifications or arrangements of AI-generated outputs

For prompts that instruct an AI system to generate an output, the Office concluded that, given current technology, prompts alone do not provide sufficient human control to make users of an AI system the authors of the output. Prompts function as instructions conveying unprotectible ideas, and they do not control how the AI system processes them in generating the output. The gaps between prompts and resulting outputs demonstrate that the user lacks control over the conversion of their ideas into fixed expression, and the system largely determines the expressive elements in the output. Repeatedly revising prompts does not change this analysis. Inputting a revised prompt is not materially different from inputting a single prompt, as it involves "re-rolling" the dice without altering the degree of control over the process. The Office also rejected the theory of "authorship by adoption," which suggests that selecting an AI-generated output among uncontrolled options equates to authorship.

With respect to expressive inputs that can be perceived in AI-generated outputs, the Office determined that in situations where a human inputs their own copyrightable work and that work is perceptible in the output, they will be the author of at least that portion of the output. Think of this as providing a sketch or drawing to an AI system together with instructions to modify that sketch or drawing in a certain way. If the output contains a recognizable portion of that sketch or drawing, copyright of the AI-generated output would cover the perceptible human expression and may also cover the selection, coordination, and arrangement of the human-authored and AI-generated material, even though it would not extend to the AI-generated elements standing alone. Additionally, the guidance notes that their own creative expression will be protected by copyright, with a scope analogous to that in a derivative work.

Finally, with respect to modifications or arrangements of AI-generated outputs the Office explained that a human may select or arrange AI-generated material in a sufficiently creative way that the resulting work as a whole constitutes an original work of authorship. A human may also modify material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection. Many popular AI platforms offer tools that encourage users to select, edit, and adapt AI-generated content in an iterative fashion, enabling the user to control the selection and placement of individual creative elements. Whether such modifications rise to the minimum standard of originality required under governing caselaw will be determined on a case-by-case basis. In those cases where they do, the output should be found copyrightable.

In summary, the U.S. Copyright Office's report on the copyrightability of AI-generated outputs provides a comprehensive analysis of the legal and policy issues involved. It reaffirms the requirement for human authorship in copyright law and emphasizes the importance of human creativity in the face of advancing AI technologies. The report serves as a valuable resource for understanding the intersection of copyright and artificial intelligence.

The IP attorneys at Sandberg Phoenix welcome the opportunity to help protect your creative works through copyrights, trademarks, patents and trade secrets.

Sandberg Phoenix is a full service law firm specializing in business, business litigation, products liability, health law, individual services and intellectual property.

Tracey Truitt joined Sandberg Phoenix as a shareholder in 2023 and is practice group leader of the intellectual property practice group. With over 25 years of experience in intellectual property law, Truitt serves clients of all sizes across industries including biotechnology, agribusiness, food, health care and life sciences. He counsels clients on patent, trademark and copyright acquisition, licensing, enforcement issues, due diligence, prosecution, litigation and other general business matters.