Tools or Masterminds? — The Copyright Office on AI Authorship

Maggie Lee

The debate over authorship in AI-generated works is a central topic in legal and creative circles. In the United States, the Copyright Office consistently denies intellectual property protection for AI-generated works, insisting on the requirement of human authorship.[1] However, it also recognizes the possibility of AI-assisted works being eligible for copyright if they exhibit sufficient human authorship,[2] raising crucial questions about the distinction between human creativity and AI-driven outputs.

The recent case of Thaler v. Perlmutter, decided by the District Court for the District of Columbia,[3] highlights the complexity of this issue. In 2018, Steven Thaler sought copyright registration for an AI-generated artwork.[4] Thaler attributed the authorship to an AI, describing it as “autonomously created by a computer algorithm running on a machine,” but sought to claim the copyright of the work himself.[5] The Copyright Office rejected the application on the grounds that it lacked human authorship, and the court upheld this decision, reinforcing the idea that human creativity is the core of copyrightability.[6]

In August 2023, the Copyright Office issued a Notice of Inquiry and Request for Comments, addressing four key areas related to AI-generated works: [7]

  1. The use of copyrighted works to train AI models;
  2. The copyrightability of material generated using AI systems;
  3. Potential liability for infringing works generated using AI systems;
  4. The treatment of generative AI outputs that imitate the identity or style of human artists.

The second issue involves the challenge of distinguishing between human and AI authorship. Both the Copyright Office and U.S. courts stress that AI-generated work necessitates human authorship and creativity. However, the extent of human involvement and the level of control exerted by human programmers can influence the copyrightability of AI-generated content.

While the Constitution’s Copyright Clause nor the Copyright Act does not explicitly define “author,” the Supreme Court and U.S. courts have interpreted it to exclude non-humans.[8] This interpretation has led the Copyright Office to impose a human authorship requirement.[9] A recent case involving a graphic comic novel featuring AI-generated images further underscores this point, as copyright registration was limited to the text authored by humans.[10]

The Copyright Office also recognizes that AI-assisted works can qualify for copyright protection if they exhibit sufficient human authorship.[11] For example, artists can creatively select or arrange AI-generated materials or make significant modifications to AI-generated content, all of which may merit copyright protection.[12] Importantly, this protection only extends to the human-authored elements of the work, not the AI-generated content itself.[13]

The central challenge now lies in defining the threshold of human participation required to meet the human authorship requirement. The Copyright Office requires applicants to disclose AI-generated content and explain the extent of human author contributions.[14] As AI technology evolves, quantifying the necessary human input to claim authorship over AI-generated output becomes increasingly complex.

Traditionally, copyright in computer-generated works was unquestioned, as the computer program was perceived as a tool that facilitated the creative process.[15] The Copyright Office likens certain AI uses to traditional mechanical tools, emphasizing the significance of human creative control over the work’s expression.[16] If humans retain creative control, it qualifies for copyright protection.[17] However, modern machine learning algorithms, when applied to artistic, musical, or literary works, learn from human-provided input and autonomously make creative decisions.[18] This evolving form of artificial intelligence blurs the line between human and machine, raising profound questions about copyright.

In conclusion, the debate surrounding AI authorship is an evolving conversation, with the Copyright Office and courts stressing the importance of human authorship and creativity. The primary challenge is to determine the extent of human involvement required to establish authorship and secure copyright protection.


[1] See, e.g., U.S. Copyright Office Review Board, Decision Affirming Refusal of Registration of a Recent Entrance To Paradise at 2 (Feb. 14, 2022),​rulings-filings/​review-board/​docs/​a-recent-entrance-to-paradise.pdf [] [].

[2] Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16190, 16192 (Mar. 16, 2023) (to be codified at 37 C.F.R. pt. 202).

[3] Thaler v. Perlmutter, No. CV 22-1564 (BAH), 2023 WL 5333236 (D.D.C. Aug. 18, 2023).

[4] Id. at *1.

[5] Id.

[6] Id. at *1, *6.

[7] Artificial Intelligence and Copyright: Notice of Inquiry and Request for Comments, 88 F.R. 59942, 59945 (Aug. 30, 2023).

[8] See, e.g., Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884); Urantia Found. v. Kristen Maaherra, 114 F.3d 955, 957-59 (9th Cir. 1997).

[9] 88 F.R. 16192.

[10] U.S. Copyright Office, Zarya of the Dawn Letter at 12 (Feb. 21, 2022), [] [].

[11] 88 F.R. 16192.

[12] Id.

[13] Id.

[14] Id. at 16193.

[15] Andres Guadamuz, Artificial Intelligence and Copyright, Wipo Mag., Oct. 2017, at 17.

[16] Daniel Grant, New US Copyright Rules Protect Only AI Art with ‘Human Authorship,’ Art Newspaper, May 4, 2023, [] [].

[17] Id.

[18] Guadamuz, supra note 15, at 17.