As Generative AI continues influencing creative industries, the U.S. Copyright Office has provided more guidance—if still case-specific—via a line in the sand: Copyright law protects human creativity, not the computational byproduct of algorithms operating without meaningful human direction.

In its January 2025 report, Copyright and Artificial Intelligence, Part 2: Copyrightability, the Copyright Office offers its most comprehensive guidance yet on its views of the legal status of AI-generated works. Building on public input from over 10,000 comments, the Office reaffirms a foundational principle: “Copyright law protects only works of human creation.”

Existing Law Can Be Applied to Authorship Issues for Generative AI

The Office’s message is pragmatic, recognizing that the law always lags behinds new technology. Advances in technology regularly clash with existing law—since well before Generative AI. Just as the law was adapted to those changes, existing copyright law is up to the task. Courts and agencies have long adapted copyright law to new creative tools, from the camera to video games and software. 

The questions surrounding AI authorship echo earlier debates from the 19th century, when cameras first entered the creative arena. In Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884), the U.S. Supreme Court considered whether a photograph could qualify for copyright protection or whether it was merely the mechanical product of the camera, a machine. The Court ruled that photographs could indeed be protected, so long as the photographer made creative decisions about elements like lighting, pose, costume, and composition. The case established a critical precedent for future technologies such as Generative AI: Using a machine to capture or express an idea does not bar copyright protection, as long as a human author contributes the requisite original expression. Today, the Copyright Office applies the same reasoning to Generative AI-assisted works, emphasizing that copyrightability turns not on the tool used, but on the presence and degree of human creativity. The Office sees Generative AI through the same lens, distinguishing between works created with Generative AI assistance and those autonomously generated by Generative AI without the benefit of human creativity.

According to the report, copyright can still attach to works that involve Generative AI tools, but only to the extent that a human has contributed sufficient expressive elements. “Where AI merely assists an author in the creative process, its use does not change the copyrightability of the output,” the report concludes. However, “if content is entirely generated by AI, it cannot be protected by copyright.”

Prompts Are Not Authorship

Much of the debate centers around user prompts—text instructions submitted to Generative AI platforms like DALL·E or ChatGPT. One issue raised in the report is whether prompts serve as the basis for authorship of the resulting outputs.

The Copyright Office says: not usually.

While the prompts themselves may be copyrightable in rare cases if sufficiently creative, they typically don’t confer rights in the generated work. As the Office explains, users often have no real control over the AI’s expressive decisions, especially given the systems’ unpredictability and the “black box” nature of how outputs are produced.

Some commenters argued that prompting is akin to artistic direction, likening iterative prompting to “dabbing paint on a canvas.” Others disagreed, emphasizing the randomness of AI results and noting that similar prompts can yield entirely different outcomes—even when repeated under identical conditions.

The Office takes a middle ground. It acknowledges that while more detailed prompting and iterative revision may increase the user’s influence, that alone rarely meets the legal threshold for authorship. What matters is whether the human user has meaningfully shaped the expressive elements that are ultimately perceived in the final output.

No Copyright for Generative AI Alone—and No Sui Generis Alternative (Yet)

The report firmly rejects extending copyright protection to works created solely by Generative AI. It also resists calls to create a new “sui generis” legal regime tailored to AI-generated content. “The case has not been made,” the Office concludes, though it remains open to revisiting the question as technologies evolve.

Recent court decisions support this underlying reasoning, but it is important to keep in mind that the relevant copyright applications were filed years before the decision of the Court of Appeals. In Thaler v. Perlmutter, 130 F.4th 1039 (D.C. Cir. 2025), the D.C. District Court upheld the Copyright Office’s denial of a registration for a Generative AI-generated image, emphasizing that “human authorship is a bedrock requirement of copyright.” 

Thaler filed a copyright application to register a work on November 3, 2018, years before Generative AI tools became widely popularized. In the copyright application, Thaler expressly identified the author of the work as the “Creativity Machine” and that the work was “Created autonomously by machine.”  Thaler v. Perlmutter, Case No. 1:22-cv-01564-BAH (D. D.C.), Document 1, ¶ 17. Thaler further acknowledged in the application “the Work was autonomously created by a computer and that [Thaler] was entitled to own the copyright in the Work including by virtue of the work made for hire doctrine.” Id. ¶ 18. The Copyright Office rejected the application “because it lacks the human authorship necessary to support a copyright claim.” Id. ¶ 19.  Thaler responded to the Copyright Office that human authorship is not a requirement supported by law. Id. ¶ 20.  

What This Means for Creators, Developers, and Lawyers

For now, those who use Generative AI as part of their creative process should consider disclosing its role in copyright applications. Registrants must identify which parts of a work were authored by a human and which were generated by AI. Authors should further consider record keeping of the human creativity component, as they may become relevant to the Copyright Office’s initial analysis of determining registrability. Registrability relates to enforcement, but an adverse decision from the Copyright Office does not preclude enforcement. 

Under 17 U.S.C. § 411, a party may not file a lawsuit for copyright infringement until the Copyright Office has either issued a registration for the work at issue or has refused to register it. This means that obtaining a registration or receiving a formal refusal from the Copyright Office is a necessary precondition to initiating an infringement action in court. Past disputes have revolved around the distinction between applying for a copyright registration and actually receiving the registration from the Copyright Office. In Forth Estate Public Benefit Corporation v. Wall-Street.com, LLC, 586 U.S. 296 (2019), Justice Ruth Bader-Ginsburg’s opinion makes clear that registration “has been made” requires the “registration approach,” meaning that the Copyright Office must register (or reject) the work in order for a copyright plaintiff to comply with § 411 and that merely applying for a copyright registration before filing suit is not sufficient. This ensures that the Copyright Office has had an initial opportunity to review the copyright claim before judicial proceedings begin. But the Copyright Office does not necessarily have the final say.

If the Copyright Office refuses registration, the applicant may still bring an infringement lawsuit, provided they include the correspondence from the Office showing the refusal and take other procedural steps in compliance with the statute. Those procedural steps include notifying the Copyright Office concerning the lawsuit so that the Copyright Office can participate on issues related to registrability. Ward v. National Geographic Soc., 208 F.Supp.2d 429, 445-447 (S.D.N.Y. 2002). The Ward court cites another Ruth Bader Ginsburg-authored decision in OddzOnProducts, Inc. v. Oman, 942 F.2d 346 (D.C.Cir. 1991), for support that the District Court can review “the full panoply of copyright infringement issues” including issues of copyright validity.  

The practical takeaway is that AI is a tool—sometimes powerful, sometimes opaque—but it is not a creator under U.S. law. The human must still do the heavy lifting of authorship. Although the Copyright Office has staked out its view on where the line should be, in this new area of Generative AI, the line between sufficient human authorship will likely be discovered by the courts.

That may be good news for creators seeking to preserve the value of human-made works, even in a landscape increasingly shaped by machines.