Copyright in the AI Era: What the Latest Federal Guidelines Mean for Your Work

“The machine can be productive; but it cannot create.”

- William Blake

The U.S. Copyright Office just released the much anticipated Copyright and Artificial Intelligence Part 2: Copyrightability report that clarifies of the most important questions in creative industries today: how does AI affect copyright? Artists, writers, musicians, and companies increasingly use AI tools like DALL-E, Midjourney, Flux, and ChatGPT in their creative process, creating uncertainty about whether the resulting works can be protected by copyright. Not just a theoretical legal question — it has real implications for the livelihoods of creators and the business models of companies investing in AI technology. And the stakes are high. Too restrictive an approach could stifle innovation and creative expression, while too permissive an approach could undermine human creativity and flood the market with AI-generated content. This report affects everyone in creative businesses, from individual artists experimenting with AI tools to enhance their work, to major studios using AI for special effects, to tech companies developing new AI-based creative tools. For anyone who creates content using AI — or competes with AI-generated content — this report shows where the Copyright Office draws the line. It’s long and detailed and I read it, so you don’t have to. Here’s a summary of the key points.

The Big Picture: Key Takeaways

The Copyright Office’s message is clear: using AI as a creative tool doesn’t invalidate your copyright protection. Photographers didn’t lose their rights when they switched from darkrooms to Photoshop, and creators won’t lose their protection when they incorporate AI into their creative process. However, the Office draws the line at purely AI-generated content — simply typing prompts into Midjourney or ChatGPT and using their outputs isn’t enough to claim copyright protection. I think this stance balances embracing technological innovation while also maintaining the requirement of human creativity in copyright law.

The key to copyright protection is what the Office calls “meaningful human creative input.” This input could be using AI to assist in executing your creative vision (like using it for special effects), creatively arranging or modifying AI-generated elements, or incorporating AI outputs into a larger human-authored work. The Office also concluded that our existing copyright framework is fully capable of handling AI-related issues — we don’t need new laws or special regulations. This approach provides stability for creative industries while also remaining flexible enough to adapt as AI technology continues to evolve at an exponential rate. For creators and companies, the rules of the game haven’t fundamentally changed; they’ve just been clarified for the AI Era.

What This Means for Different Groups

For Individual Creators

For individual creators like me, the Copyright Office provides clear guidelines on how to maintain copyright protection while using AI tools. The key is to treat AI as what it is — a tool to help execute your human creative vision, not a replacement for your creativity. Prompting (simply typing text descriptions into an AI system), no matter how detailed or carefully crafted, won’t be enough to claim copyright protection. If you’re just generating AI art through prompts and selecting your favorite outputs, you won’t be able to register those works for copyright protection, even if you spent hours refining your prompts or generating hundreds of variations. The AI is the one that does the heavy lifting — sorry prompt engineers!

What does qualify for protection? The report provides several approaches that demonstrate sufficient creative input. For example, if you use AI to help realize your own original artwork — like using it to help with color variations or special effects using Photoshop’s Adaptive Fill — that work can be protected. If you take AI-generated elements and creatively arrange them into a new composition, like a collage, that arrangement can be protected. If you substantially modify AI outputs through your own creative process, perhaps incorporating AI images with other mediums, those modifications can be protected. And if you incorporate AI-generated elements into a larger work that you’ve created — like using AI-generated images as part of a human-written graphic novel — the work as a whole can be protected, even if the AI elements themselves aren’t.

The key is documenting your creative process and being clear about which elements come from your own creativity versus the AI system.

For Companies

For companies building business models around AI-generated content, the Copyright Office’s report provides some guidance that may require strategic adjustments. As we saw with individuals, companies can’t build their intellectual property portfolios purely on AI-generated content, no matter how sophisticated their prompting systems might be. Most likely affected are businesses attempting to mass-produce content using AI — from artwork and stock photos to written content and music. And who wants this slop? Not me. These outputs won’t be eligible for copyright protection unless they incorporate sufficient human creative input. Companies need to carefully evaluate their production processes to ensure they’re adding the necessary layer of human creativity if they want their content to be protectable.

Companies need to have clear documentation processes for their AI-assisted content creation. This process should include tracking the creative human contributions at each stage, maintaining records of how AI outputs were modified or arranged by human creators, and being transparent about which elements were AI-generated versus human-created. Companies should also consider the broader risk that without copyright protection, their AI-generated content could be freely copied by competitors. There’s also the risk of inadvertently infringing others’ copyrights if AI-generated content inappropriately incorporates protected works. The safest approach is to treat AI as an assistive tool within a human-led creative process, rather than attempting to automate content creation entirely. Hopefully this approach reduces the amount of AI slop we see in the world.

Some Practical Examples

To help drive home the approach, the Copyright Office report provides several useful examples of how AI can be used while maintaining copyright protection. One insightful case involved an artist who created an original hand-drawn illustration of a cyborg woman with roses, then used this image as input for an AI system along with specific prompts (called “image-to-image” generation, it’s a fun workflow). The final work maintained the artist’s original creative elements — the mask outline, facial features, and flower arrangement — while the AI added realistic texturing and dimensionality, bringing the illustration to life. The Office registered this work for copyright protection but specifically limited it to the human-created elements that remained clearly visible in the final artwork. This case shows how AI can be used to enhance and elaborate on human-created work while preserving copyright protection.

The Office has refused registration for works that lack sufficient human creativity. In one case, a user submitted an AI-generated image created by inputting a photograph into an AI system and asking it to apply a Van Gogh-like style. The user carefully selected inputs and style parameters, but the Office found that simply instructing an AI system to process an image in a particular style doesn’t constitute enough creative control to warrant copyright protection. The user didn’t meaningfully shape or modify the AI’s interpretation of the request, instead letting the system make all the creative choices in translating the photo into the new style. Again, the AI did the important work in this case, not the human.

Perhaps the most interesting example is the “Randy Travis case,” where AI was used to help create a new sound recording by the country music star, who has limited speech function following a stroke. The AI system was trained on Travis’s prior recordings and used “[a] special-purpose AI vocal model . . . as a tool . . . to help realize the sounds that Mr. Travis and the other members of the human creative team desired.” The human creative team made all the key artistic decisions about the song’s interpretation, phrasing, and emotional expression, only using AI as a technical tool to achieve the desired vocal sound. The Copyright Office registered this work because the AI was clearly serving as an assistive tool in service of human creativity, rather than generating the creative expression itself. This case is a great illustration of how AI can be used as an innovative tool while maintaining the human authorship necessary for copyright protection.

Common Questions About AI & Copyright

Q: Can I copyright my AI art?
A: It depends on your creative process. If you only used prompts to generate the art — even very detailed prompts — then no, you cannot copyright it. However, if you made substantial creative contributions, like incorporating your own artwork, meaningfully arranging AI elements, or creatively modifying AI outputs, then those elements may be copyrightable. The key is having enough human creative input in the final work.

Q: What counts as “meaningful human input”?
A: The Copyright Office looks for clear evidence of human creative choices that shape the expressive elements of the work. This could include:

• Using AI to help execute your original creative vision
• Creatively selecting and arranging AI-generated elements into a new composition
• Substantially modifying AI outputs through your own artistic process
• Incorporating AI elements into a larger human-authored work

Simply selecting outputs from multiple AI generations or refining prompts does not qualify as meaningful input. You need a record of your contributions to the piece.

Q: How should I document my creative process?
A: When registering works that incorporate AI elements, you should:

• Keep records of your original sketches, plans, or designs
• Document the specific creative choices you made in modifying or arranging AI outputs
• Be clear about which elements were human-created versus AI-generated
• Save intermediate versions showing your creative process
• Be prepared to explain your creative contributions when registering the work

Q: What about international protection?
A: This one is tricky because different countries are still developing their own approaches to AI-generated works. While there’s some agreement that copyright requires human authorship, the specific requirements vary by country. Some countries, like the UK, have special provisions for computer-generated works. If you’re seeking international protection, you’ll need to research the requirements in each country where you want protection. However, the guideline of focusing on meaningful human creative input in your work will give you the strongest case for protection no matter the country.

Q: If I use AI tools as part of my creative process, will that affect my copyright?
A: No, using AI tools to assist in your creative process won’t invalidate your copyright, just as using Photoshop or other digital tools doesn’t affect copyright protection. The key is that you’re using AI as a tool to help execute your creative vision, not relying on it to generate the creative expression itself.

Q: Can my company copyright content that’s been refined or curated by our team but originally generated by AI?
A: Simply selecting, refining, or curating AI-generated content isn’t enough for copyright protection. Your team needs to make creative contributions that shape the expressive elements of the work. Consider integrating AI outputs into larger human-authored works or having your team creatively modify the AI outputs.

Looking Ahead

The Copyright Office’s report provides a clear framework for creators to work with today’s AI tools, but creators should consider several steps to ensure compliance. First, review your creative processes involving AI and ensure they include sufficient human creative input to deserve copyright protection. Carefully document your creative process, especially when registering works that incorporate AI elements. If you’re building a business around AI-assisted content, make sure your workflows include meaningful human creative contribution rather than relying solely on AI generation and curation. Or you’ll run the risk of uncopyrightable materials.

Smartly, the report accepts that AI technology continues to evolve rapidly, and what’s true for today’s tools may change as the technology advances. The Office will continue monitoring developments to determine if its current approach remains the most appropriate. Key areas to watch include improvements in AI’s ability to follow specific creative direction, developments in prompt engineering and user control, and the emergence of new types of AI creative tools we haven’t thought of yet. The Office specifically noted that if future AI tools provide users with substantially more control over the creative elements of the output, it might revisit its conclusion about the copyrightability of prompted works. What if my brain waves are influencing the diffusion steps in real time to create a novel image?

Several important questions remain open. AI training and licensing issues will be addressed in a future report, which could affect both AI developers and creators whose works are used for training. There are also ongoing questions about how to handle attribution and transparency around AI use, particularly as AI-generated content becomes more sophisticated and potentially harder to distinguish from human-created work. As the international landscape continues to evolve, with different countries taking different approaches to AI-generated works, creators working internationally will need to carefully navigate these differences.

Conclusion

The Copyright Office’s report on AI and copyright brings some clarity to a rapidly evolving world where AI can be a powerful creative tool, citing that copyright protection still fundamentally requires human creativity. For creators and companies working with AI, focus on meaningful human creative input rather than trying to copyright purely AI-generated content. The Office has committed to providing ongoing guidance as technology evolves, and creators can stay informed through the Copyright Office’s dedicated AI initiative website. The key is to document your creative process carefully and be transparent about AI use when registering works. Creators who maintain human creative input in their work can keep creating with confidence in their copyright protection.