Annie Allison of Haynes Boone discusses key takeaways from Part 2 of the U.S. Copyright Office's Report on Copyright and Artificial Intelligence, and the implications on the ability to protect AI-generated works through copyright in the United States.
The United States Copyright Office (Office) has released Part 2 of its Report on Copyright and Artificial Intelligence which addresses the copyrightability of AI-generated works (here, opens new tab). It maintains that human authorship and creativity remain essential in the quest to obtain copyright protection for works involving materials created by artificial intelligence.
), the recently released "Part 2: Copyrightability" analyzes the type and degree of human contributions required to bring AI generated works within the scope of copyright protection in the United States, as well as the international landscape of how other countries are approaching questions of copyrightability in the AI space and the policy implications of providing additional legal protection to AI-generated material.
The release of "Part 2: Copyrightability" is a direct result of the Office's AI initiative started in early 2023, which aims to issue registration guidance for works incorporating AI-generated content. Following are the key takeaways from "Part 2: Copyrightability" and the implications this report will have on the ability to protect AI-generated works through copyright in the United States.
Copyright requires human authorship
In "Part 2: Copyrightability," the Office affirms that copyright protection in the United States requires human authorship. The Office points to the foundational principles found in the Copyright Clause in the Constitution and the language of the Copyright Act as interpreted by U.S. courts which grants Congress the authority to "secur[e] for limited times to authors ... the exclusive right to their ... writings." U.S. Const. art. I, § 8, cl. 8.
The Supreme Court has further explained that, "the author [of a copyrighted work] is ... the person who translates an idea into a fixed, tangible expression entitled to copyright protection." Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989).
The Office further notes that no U.S. court has recognized copyrights in materials created by non-humans, and courts that have spoken on this issue have directly rejected the possibility. Copyright and Artificial Intelligence Part 2: Copyrightability (2025) (Part 2) at 7-8.
Copyrightability for AI-generated works
For any work to be copyrightable in the U.S., the Office affirms that the human authorship must contain some degree of originality and cannot be merely the result of time and effort. Part 2 at 8, citing Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 352–61 (1991).
With this in mind, along with noting that each determination of protectability must be made on a case-by-case basis, the Office lays out three scenarios in which AI-generated works may qualify for copyright protection:
•Assistive uses of AI. According to the Office, the use of AI tools to assist rather than stand in for human creativity should not affect the availability of copyright protection for the output. In other words, where a human user references but does not incorporate AI output in the development of his or her own work of authorship, the Office takes the position that such human-authored work should be protectable by copyright. Part 2 at 11-12.
•Expressive inputs and the resulting outputs.Where a human inputs their own copyrightable work into an AI system and that work is perceptible in the output, the Office suggests that the human author's creative expression should be protected by copyright, exclusive of any AI-generated output. Just as derivative work protection is limited to the material added by the later author, the Office reasons that copyright in AI-generated output should be limited to only the perceptible human expression in that output. Part 2 at 24.
•Modifications and arrangements of AI-generated content. Where a human author selects or arranges AI-generated material in a sufficiently creative way such that the resulting work as a whole constitutes an original work of authorship, the human-authored modifications and/or arrangements are entitled to copyright protection — but only to the extent that such modifications and arrangements rise to the minimum standard of originality. Part 2 at 26. The Office further notes that the inclusion of elements of AI-generated content in a larger human-authored work (for example, the use of AI-generated special effects in a film) should not affect the copyrightability of the larger human-authored work as a whole (excluding any AI effects or artwork). Part 2 at 27.
Prompts, alone, are an insufficient basis for protection of AI-generated works
The Office firmly concludes that AI prompts, alone, do not provide sufficient human control to automatically make a human user of an AI system the author of the output. To demonstrate its reasoning, the Office points to the unpredictability of the prompt-to-output generation process which makes it difficult to show that there was sufficient control to result in a predictable outcome.
Indeed, the Office notes that generative AI systems can produce a seemingly limitless number of variations in response to the same prompt no matter how many times that prompt is used and that many AI systems operate as black boxes, meaning that users and even developers cannot predict what will inform the AI's output. Part 2 at 18-21.
Global comparisons of copyright protection for AI-generated works
"Part 2: Copyrightability" also assesses the global landscape of copyright protection in AI-generated materials. While there appears to be an emerging global consensus on the need for human authorship in connection with the protection of AI-generated works, the Office notes that global views on copyright standards for AI-generated works are still forming. Following are highlights of how a few other countries are approaching the question of copyrightability for AI-generated works:
•European Union — AI generated content may be eligible for copyright "only if the human input in [the] creative process was significant." Part 2 at 29.
•United Kingdom — a statute predating the development of generative AI technologies protects works "generated by computer in circumstances such that there is no human author of the work." The U.K. government is currently assessing questions of copyrightability and AI. Part 2 at 29.
•Japan — copyrightability of AI-generated content is determined on a case-by-case basis, depending on: (1) the amount and content of the instructions and input prompts by the AI user, (2) the number of generation attempts, (3) the selection by the AI user from multiple output materials, and (4) any subsequent human additions and corrections to the AI-generated work. Part 2 at 28.
•China — A person who uses AI to create the work is the author of that work. Part 2 at 28.
The Office is closely monitoring developments abroad and evaluating how the evolving approaches from other countries may ultimately overlap or differ from the approach in the U.S.
No new legal protections needed for AI-generated works
The Office does not see the need for new laws or rules to protect AI-generated materials, noting that existing U.S. copyright laws are flexible enough to respond to new technologies and mediums, such as AI, as they emerge. Part 2 at 36.
Many have suggested that additional protections for AI-generated materials are needed to further incentivize progress. However, the Office takes a contrary view, noting that developers of AI models and systems already enjoy meaningful incentives under existing laws and expressed concern about the impact that AI-generated materials could have on human authors and the value that their creative expression provides to society: "If authors cannot make a living from their craft, they are likely to produce fewer works. And in our view, society would be poorer if the sparks of human creativity become fewer or dimmer." Part 2 at 37.
Insights for legal professionals
As legal professionals consider the positions taken by the Office in Part 2: Copyrightability, following are the most important takeaways when counseling on copyright protections for AI-generated works:
•Human authorship is the foundational requirement for the copyrightability of AI-generated materials.
•Copyright protection for AI-generated works may be warranted in the following scenarios:
Assistive uses of AI — Works that are produced through the assistance of AI tools may be protected by copyright so long as the result involves sufficient human creativity (note: AI prompts, by themselves, do not satisfy this human creativity threshold).
Expressive inputs and outputs — Human-authored creative content that is modified by an AI system may still be protected by copyright, limited solely to the human-created content. Human derivatives of AI-generated works may be protected by copyright, limited solely to the derivative portion of the human-authored work.
Selection and arrangement — Selection, organization and arrangement of AI-generated materials that reflect originality and creativity may be protectable by copyright, limited solely to the human-authored selection, organization and arrangement.
•Prompts alone are not sufficient to warrant copyright protection in AI-generated works. The Office likens prompts to mere instructions that do not result in predictable outputs.
•No new copyright laws are currently needed to protect AI-generated works.
The Office will continue to monitor technological and legal developments to determine whether any of its conclusions reached in Part 2: Copyrightability warrant revisiting. The forthcoming Part 3 of the Office's report will address the legal implications of training AI models on copyright-protected works, licensing considerations and the allocation of any potential liability.
