Law360 (January 29, 2025, 10:33 AM EST) -- Simply directing artificial intelligence platforms to make art, music, videos and other creative works is not enough for users of AI systems to be considered authors entitled to copyright protection, the U.S. Copyright Office said Wednesday in a report that's part of a broader agency initiative to explore legal issues raised by the revolutionary technology.

In its long-awaited report addressing the copyrightability of AI creations, the Copyright Office emphasized that it is possible to obtain copyright protection for works made with the help of an AI system. But the agency reaffirmed its position that content created entirely by AI cannot be protected and that there must be some level of human involvement for copyright registration. 

How much human involvement is required, however, remains an open question that must be decided on a case-by-case basis, the government agency said.

"Where AI merely assists an author in the creative process, its use does not change the copyrightability of the output" of the AI system, the Copyright Office said. "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."

Prompts alone do not qualify as having sufficient human control over an AI system because the existing technology may produce content that a user did not specify, or exclude content that was specified, for example, the Copyright Office said. The agency said many popular AI systems are also unpredictable and may generate outputs that vary from request to request, even with the same prompt. 

"The office concludes that, given current generally available technology, prompts alone do not provide sufficient human control to make users of an AI system the authors of the output," the report said. "Prompts essentially function as instructions that convey unprotectible ideas. While highly detailed prompts could contain the user's desired expressive elements, at present they do not control how the AI system processes them in generating the output."

The report is the second of three reports the agency is releasing that examine the intersection of copyright and AI. The first report released in July focused on the proliferation of deepfakes and issued recommendations for Congress to enact federal legislation to address the issue.

The third report, due out later this year, will deal with legal questions surrounding training AI models with copyrighted works. The reports' conclusions draw from more than 10,000 comments the office solicited in 2023 from various stakeholders.

"After considering the extensive public comments and the current state of technological development, our conclusions turn on the centrality of human creativity to copyright," Shira Perlmutter, register of copyrights and director of the Copyright Office, said in a statement with the report's release. "Where that creativity is expressed through the use of AI systems, it continues to enjoy protection. Extending protection to material whose expressive elements are determined by a machine, however, would undermine rather than further the constitutional goals of copyright."

While the first report urged legislative action, the Copyright Office said Wednesday that existing law is adequate to address the copyrightability of AI-generated works, based on the comments it received. However, the courts also will have a role to play, according to the agency.

"As to determining the copyrightability of AI outputs, the courts will provide further guidance on the human authorship requirement as it applies to specific uses of AI (including in reviewing the Office's registration decisions)," the agency said.

In 2022, the agency rejected a two-dimensional artwork submitted by AI researcher Stephen Thaler, who said an AI system he programmed and dubbed "the Creativity Machine" had created the work without human involvement. Thaler is appealing to the D.C. Circuit, which heard arguments in September.

The agency is also facing a lawsuit from a Colorado artist who created the first image generated by artificial intelligence to win an award at the state's fair. The Copyright Office rejected Jason Allen's image, titled "Théâtre D'opéra Spatial," for registration and dismissed his arguments that the more than 600 prompts he used to bring his vision to life on Midjourney's platform entitled his two-dimensional artwork to copyright protection. 

The Copyright Office has, however, registered works that include contributions from an AI system so long as those are disclaimed. One such example includes a short comic book by Kris Kashtanova titled "Zarya of the Dawn," which included AI-generated illustrations. In such cases, the registration protects only the human author's contribution, so the comic book's illustrations are not covered. 

"There may come a time when prompts can sufficiently control expressive elements in AI-generated outputs to reflect human authorship. If further advances in technology provide users with increased control over those expressive elements, a different conclusion may be called for," the report said.

The report noted the concern from some commenters last year that providing legal protection to AI-generated content would discourage human authorship.

"Representatives of copyright owners maintained that the proliferation of legally protected AI-generated outputs would stifle creativity, leading to an overall decrease in human-authored works available to the public because humans will be disincentivized to create," the agency said.

The report also includes a brief overview of how other countries are addressing the copyrightability of AI-created works. Japan, for example, follows guidelines similar to the U.S., with the country's Copyright Subdivision of the Cultural Council saying last year that copyrightability of AI content will be determined on a case-by-case basis and will depend on the level of human involvement.

In China, meanwhile, the Beijing Internet Court dealt with a copyright infringement case involving an AI-generated work in 2023 and found that an image created using the Stable Diffusion model was protectable and that the person who used the AI was the author.

"According to the court, the selection of over 150 prompts combined with subsequent adjustments and modifications demonstrated that the image was the result of the author's 'intellectual achievements,' reflecting his personalized expression," the Copyright Office said.

--Editing by Emily Kokoll.

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