As generative artificial intelligence (AI) tools become more commonly used in day-to-day business operations, from writing marketing copy to designing website visuals, important questions are emerging. “Can your business actually own the copyright to what AI generates?” According to the U.S. Copyright Office, the answer is tricky. If you do it wrong, your valuable work can remain unprotected.
Core rule: Requires a human author
In recent years, the Copyright Office has issued formal registration guidance that affirms the fundamental principle that human copyright is necessary for copyright protection. Works that are generated entirely by AI, without meaningful human creative input, are not eligible for copyright registration. This is not a new law. It is an application of long-standing principles based on the Copyright Clause of the Constitution and the text of copyright law as interpreted by the courts. If an AI system determines the expressive elements of a work, its output may not belong to anyone.
The agency reinforced this position in Part 2 of its Report on Copyright and Artificial Intelligence (January 2025), noting that “prompts alone do not provide sufficient human control to make users of AI systems authors of their output,” especially given current technology. Simply entering instructions into a tool like Claude or ChatGPT does not make you the creator of what is produced.
When AI-assisted works can still be protected
Works that combine AI-generated material with sufficient human creativity may be eligible for copyright protection. The important elements are: (1) Humans select and arrange AI outputs in sufficiently creative ways. (2) significantly modify or edit the AI-generated content to give it a personal human expression; or (3) humans integrate AI-generated materials into larger works that are largely created by humans. Since issuing its 2023 guidance, the Copyright Office has granted hundreds of registrations for works that incorporate AI-generated material, showing that thoughtful human involvement can still earn protection.
Disclosure is required when applying for registration
If your work contains more than a de minimis amount of AI-generated content, you must disclose that fact when applying for copyright registration. Applicants must identify the AI-generated portions, briefly describe the contribution of the human author, and disclaim the AI-generated material. Failure to disclose may jeopardize your registration and therefore your ability to exercise your rights. Don’t worry. Standard US copyright applications will prompt you for this.
judgment based on facts
There is no simple formula or minimum threshold for determining copyright status. The Copyright Office evaluates each application on a case-by-case basis. In one notable decision in 2023, the Patent Office decided that AI-generated images within graphic novels (Zaria of the Dawn) could not be protected, but human-written text and the author’s creative choices and arrangement of images could be protected. Examples like these highlight that the line between protectable and unprotectable jobs is highly fact-dependent.
Training Data Questions: Associated Business Risks
The Copyright Office’s Part 3 Report (May 2025) goes beyond copyrighting the output and addresses whether using copyrighted works to train AI models constitutes fair use. This is an issue that is the subject of several pending federal lawsuits. Fair use determinations are very fact-specific and have been for decades. If an AI system produces expressive content that competes with the work used for training, the training is less likely to qualify as fair use. For companies that license or deploy AI tools, this could be a potential risk. If AI vendors train their models on unlicensed content, they may inherit downstream legal risks.
practical points
- Carefully document human creative contributions. The more you can demonstrate that an individual made a meaningful creative decision (i.e., selecting, arranging, editing, or transforming the AI output), the stronger your position regarding copyright will be.
- Disclosing AI involvement in copyright registration applications could protect registrations from future challenges through transparency.
- Evaluate AI vendor training data practices. Ask whether your model was trained on properly licensed content and factor that risk into your sourcing decisions.
- Evaluate the agreements your company contracts with third parties to provide creative content. If your company expects to own such deliverables, the contract should include guidelines, representations, and warranties regarding the use of AI. Guarantees or indemnifications of originality and non-infringement of work product in third-party agreements are generally recommended regardless of the context in which AI is used.
- Stay up to date. Copyright offices and courts are actively shaping the law in this area. What currently applies may change as litigation decisions and technology evolve.
Although AI is a powerful tool, copyright law still rewards human creativity. Companies that create intentional processes focused on human involvement and transparent disclosure are best positioned to protect AI-assisted work products.
