Introduction

Artificial Intelligence (AI) can now sing, draw, write, and increasingly do many things that human beings can do. AI is competing with and, sometimes, outperforming humans. In 2023, an AI-assisted artwork – Théâtre D’opéra Spatial (Work I) – won first place at the Colorado State Fair’s fine art competition to the chagrin of “real” human artists who also participated in the competition. Not surprising, AI is challenging the very foundations of intellectual property law in the US and around the globe. Copyright law is not immune to these challenges and is seeing a spat of cases that raise serious questions about the basic requirements for copyright protection under the US Copyright Act of 1976 (Copyright Act) and about the scope of the “Patent and Copyright Clause” (also known as the “Intellectual Property Clause“) of the US Constitution. Section 102(a) of the Copyright Act states that copyright subsists in “original works of authorship fixed in any tangible medium of expression” (emphasis). In March 2025, in a highly anticipated unanimous precedential opinion in Thaler v. Perlmutter, the US Court of Appeals for the District of Columbia Circuit (DC Circuit) ruled that works created entirely by an AI are not protected under the Copyright Act because the law as it is currently written “requires all eligible work to be authored in the first instance by a human being.” Although the court foreclosed copyright registration for works created entirely by an AI, it left open the status of AI-assisted works – works consisting of both human-authored and AI-generated materials. This raises three important questions. First, do AI-assisted works enjoy copyright protection in the US? Second, what level of human involvement in an AI-assisted work is necessary for such a work to receive protection under the Copyright Act? Third, what are the best practices to follow when applying to register AI-assisted works? These are no longer hypothetical questions. Increasingly, the US Copyright Office, the federal agency tasked with administering the copyright registration system, is receiving and examining applications for registration that claim copyright in AI-generated material. These questions are also before federal courts in the US. In Allen v. Perlmutter, filed in 2023, Jason Allen contends that Work I, which he created using Midjourney AI, a text-to-picture AI software, deserves copyright protection because it was created with more human involvement than the art at issue in Thaler.

AI-Assisted Works: Controversies

Case Study 1. Théâtre D’opéra Spatial

Using Midjourney AI Allen created Work I. In creating Work I, Allen input numerous revisions and text prompts to arrive at the initial version of the image. Thereafter, Allen used Adobe Photoshop to remove flaws and create new visual content and used Gigapixel AI to upscale the image. When in September 2022, Allen applied to register Work I with the Copyright Office, his application was denied on the basis that the image “lack[ed] the human authorship necessary to support a copyright claim.” In January 2023, Allen requested a reconsideration of the Copyright Office’s initial refusal (“First Request for Reconsideration”) arguing, in part, that the examiner had misapplied the human authorship requirement. In June 2023, the Copyright Office denied Allen’s request for reconsideration, concluding that Work I could not be registered without limiting the claim to only the copyrightable authorship Allen himself contributed. In July 2023, Allen requested that the Office reconsider its refusal to register Work I (“Second Request for Reconsideration”). In September 2023, the Review Board of the Copyright Office (Board) affirmed the denial of registration concluding that Work I “contains more than a de minimis amount of content generated by [AI], and this content must … be disclaimed in an application for registration.” Ultimately, the Board decided that Work I could not be registered “[b]ecause Mr. Allen [was] unwilling to disclaim the AI-generated material.” Allen then filed a complaint in the federal court.

Fig. 1. Théâtre D’opéra SpatialAs cited in the Copyright Office’s Letter to Allen

Fig. 2. Théâtre D’opéra Spatial Wins Colorado State Fair CompetitionSource: Zachary Allen/ The Pueblo Chieftain

Case Study 2. Zarya of the Dawn

The graphic novel Zarya of the Dawn (Work II) is a combination of human-authored text and images generated using Midjourney AI. In September 2022, Kristina Kashtanova applied for copyright registration and listed her name as the author of Work II. The application did not disclose that any part of Work II was created using AI. The Copyright Office approved the application and registered Work II (Registration # Vau001480196). When it came to the attention of the Copyright Office that Work II was created using Midjourney AI, it notified Kashtanova of plans to cancel the registration. In a February 21, 2023, letter, the Copyright Office stated that the original copyright registration “was based on inaccurate and incomplete information,” and will be canceled. The Copyright Office determined that: (i) the text of Work II was protected by copyright because it “was written entirely by Kashtanova without the help of any other source or tool;” and (ii) the selection and arrangement of the images and text in Work II was protectable as a compilation. Significantly, the Copyright Office also decided that the images in Work II created using Midjourney AI did not meet the “human works of authorship” requirement of the Copyright Act.

Fig. 3: Zarya of the Dawn by Kristina KashtanovaImage as cited in the Copyright Office’s letter to the creator.

As the DC Circuit stated in Thayer, the Copyright Act “requires all work to be authored in the first instance by a human being.” With the emergence of AI and a rise in the number of applications for registration that claim copyright in AI-generated material, the Copyright Office has offered guidance on the registration of works. In March 2023, the Copyright Office released a statement of policy that provided guidance on how it applies copyright law’s human authorship requirement to applications to register such works (AI Guidance). The Copyright Office also addressed this issue in a January 2025 report. According to the AI Guidance, in considering an application for registration, the Copyright Office will ask “whether the ‘work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work … were actually conceived and executed not by man but by a machine.”

Conclusions

Generative AI is challenging the very foundations of intellectual property law and implicates numerous copyright issues not addressed in this article. Regarding the copyrightability of AI-assisted works, several conclusions can be made.

First, in the US, human authorship is essential to copyrightability. In the January 2025 report, the Copyright Office rightly noted that “[n]o court has recognized copyright in material created by non-humans, and those that have spoken on this issue have rejected the possibility.” When humans are involved in the creation process and contribute to AI-generated outputs, such outputs and the work will be copyrightable to the extent that such contributions qualify as authorship.

Second, works that incorporate AI-generated material can enjoy copyright protection in the US and are not per se barred from the domain of copyright law. Indeed, the Copyright Office “has registered hundreds of works that incorporate AI-generated material.”

Third, when analyzing AI-generated material, the Copyright Office “must determine when a human user can be considered the ‘creator’ of AI-generated output.” Is AI assisting or completely replacing human beings? According to the AI Guidance, in considering an application for registration, the Copyright Office will ask “whether the ‘work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work … were actually conceived and executed not by man but by a machine.”

Fourth, control is key. In Théâtre D’opéra Spatial case, the Copyright Office denied registration because the artist “had no control over how the [AI] tool analyzed, interpreted, or responded to these prompts” and “did [not] exercise any control over the actual creation, development, or execution of the image that Midjourney rendered on his screen.” (emphasis added) In the Zarya of the Dawn case, the Copyright Office determined that Kashtanova lacked “sufficient control over” over the output that was created (emphasis added).

Fifth, it will not be enough that a human contributed in meaningful ways in creating a work. The Copyright Office has clarified that “[b]ased on the functioning of current … technology, prompts do not alone provide sufficient control.” In the Théâtre D’opéra Spatial case, copyright registration was denied even though the artist “provided highly specific prompts to select the colors, style, and era of the artwork, arranged the elements in the image to represent women dressed in Victorian dresses performing opera on stage, and further prompted the AI to depict each performer as wearing a space helmet.” In his complaint, Allen alleged that producing work required over 624 prompts from Allen and countless hours fine tuning and curating the prompts.

Sixth, understandably, there are no clear answers to the question: how much control a human user must exercise over an AI to receive copyright for an output generated by the AI. There are simply no bright line rules. Analysis of whether a work containing AI-generated material contains sufficient human authorship to support a claim to copyright, must be addressed on a case-by-case basis. Much will depend on how a particular AI tool operates and how the tool is used to create the final work.

Seventh, law and policy around the copyrightability of AI-assisted works may change as AI technology continues to advance. However, for now, the Copyright Office takes the position that “[q]uestions of copyrightability and AI can be resolved pursuant to existing law, without the need for legislative change.”

Finally, regarding the inevitable confusion around the issue of copyrightability of AI-assisted works, the Copyright Office has promised to provide ongoing assistance to the public, including through additional registration guidance and an update to the Compendium of US Copyright Office Practices.

Key Take Aways

Decision about the scope of copyright protection available for works created in part by AI has far-reaching implications for individuals, businesses, and creators who incorporate AI technology into their creative process.

A Basic Understanding of AI is Absolutely Important

Individuals, businesses, and creators who incorporate AI technology into their creative process should have a basic understanding of the nature and capability of the AI tools being used. Does a particular AI tool merely assist, or does it stand in for human creativity? How much control does the human user have over the AI tool? While the use of AI tools to assist human creativity does not affect the availability of copyright protection for the output, the equation changes when AI tools stand in for and replace human creativity. In a January 2025 report, the Copyright Office clarified:

For a work created using AI, like those created without it, a determination of copyrightability requires fact-specific consideration of the work and the circumstances of its creation. Where AI merely assists an author in the creative process, its use does not change the copyrightability of the output. At the other extreme, if content is entirely generated by AI, it cannot be protected by copyright.

Keep accurate Records of the Creative Process

Because the analysis of whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analyzed on a case-by-case basis and because human authors “are entitled to copyright in their works of authorship that are perceptible in AI-generated outputs,” accurate records of the creative process are absolutely important. Those wishing to use AI in the creative process are advised to track the creative input of the human associated with creating the work and assess the level of control they have over the output produced by AI.

The Intent and Subjective Beliefs of Human Authors are Immaterial
In determining the copyrightability of such AI-assisted work, the intent and subjective beliefs of the human beings involved in the creative process are irrelevant. In each case, “what matters is the extent to which the human had creative control over the work’s expression and ‘actually formed’ the traditional elements of authorship.” In the Théâtre D’opéra Spatial case, copyright registration was denied even though Allen believed that his input was instrumental to the shaping of the Image. An individual seeking copyright registration for an AI-generated material could start by answering the following questions:

• Does a work contain more than a de minimis amount of AI-generated material?
• Does the work containing AI-generated material also contain sufficient human authorship to support a copyright claim?
• Are the works of authorship of the human author perceptible in the AI-generated output?
• Are there creative selection, coordination, or arrangement of materials in the AI-generated output, or creative modifications of the output?
• Can the authorship that was contributed by a human be clearly identified and described? Alternatively, can the AI-generated content that is more than de minimis be identified and explicitly excluded from the application?

Clear Disclosures and Explicit Disclaimers Are Required
When a work contains more than a de minimis amount of AI-generated material, disclosures and disclaimers would be necessary. Regarding disclosures, the Copyright Office requires that the individual applying for copyright registration disclose fact that a work contains more than a de minimis amount of AI-generated material and provide a brief statement describing the human author’s contribution. Using the Standard Application, the individual should identify the author(s) and provide a brief statement in the “Author Created” field that describes the authorship that was contributed by a human.

Beyond disclosures, the applicant should also disclaim any non-human expression appearing in the final work. According to the AI Guidance, AI-generated content that is more than de minimis “should be explicitly excluded from the application,” and applicants should provide a brief description of the AI-generated content. In the Zarya of The Dawn case, the original registration was canceled because although Kashtanova was not the sole author of the entire work; the copyright claim did not explicitly exclude non-human authorship. Significantly, the Copyright Office added the following annotation to the new certificate issued to Kashtanova: “Reason for Reregistration: VAU001480196 cancelled … for failure to exclude non-human authorship.”

Professor Uche Ewelukwa Ofodile (SJD, Harvard) holds the E.J. Ball Endowed Chair at the University of Arkansas School of Law where she has taught a broad range of courses including Public International Law, Intellectual Property Law, Copyright Law, Trademark Law, Technology and the Law, and International Trade and Investment Law. Prof. Ofodile is a life member of the Council on Foreign Relations and was a two-time Senior Fellow of the Mossavar-Rahmani Center for Business and Government at the Kennedy School of Government at Harvard University.