Two takeaways from the U.S. Copyright Office's Jan. 2025 report on AI-created works

The U.S. Copyright Office released Part 2 of its report on Copyright and Artificial Intelligence on January 29, 2025.  Part 2 focuses on the copyrightability of outputs created using generative AI. (The highly anticipated Part 3, which is forthcoming, will address copyright infringement and fair use issues involving generative AI.) 

Two key takeaways from Part 2 are as follows.

1. No softening of the “human authorship” requirement.

Consistent with its position taken in recent decisions and court cases, the Copyright Office reiterated, and did not soften, its position that human control over the creative expression in generative AI outputs is required for copyright registration. The Office explained that prompts (user instructions) to create works using generative AI do not provide sufficient human control over the output created by the AI. As such, even exhaustive prompt engineering will not result in copyrightable expression using today’s generative AI technology. The key wording from the Office is as follows:

In theory, AI systems could someday allow users to exert so much control over how their expression is reflected in an output that the system’s contribution would become [protectable]. The evidence as to the operation of today’s AI systems indicates that this is not currently the case. Prompts do not appear to adequately determine the expressive elements produced, or control how the system translates them into an output.

The Office reiterated its position that copyright protection may currently be available for: (a) human-created works of authorship used as inputs/prompts that are perceptible in AI-generated outputs; (b) creative selection, coordination, or arrangement of material in the outputs (i.e., compilations); (c) creative modifications of the outputs; and (d) the prompts themselves if they are sufficiently creative (but not the outputs created in response to the prompts).

2. The Office believes foreign laws are mostly consistent with its positions.

The Office undertook a comparative analysis of the copyrightability of AI-generated works in South Korea, Japan, China, the EU, the UK, Hong Kong, India, New Zealand, Canada, and Australia. The Office concluded that other countries “that have addressed this issue so far have agreed that copyright requires human authorship.” 

Interestingly, the Office pointed to a 2023 decision of the Beijing Internet Court that allowed copyright protection for an AI-generated image in an infringement case. According to the Office, that case decided that “the selection of over 150 prompts combined with subsequent adjustments and modifications demonstrated that the image was the result of the author’s ‘intellectual achievements,’ reflecting his personalized expression.” Given the Office’s position on prompts discussed above, it is unclear whether this Chinese decision is truly consistent with the U.S. view—perhaps it is partially consistent with respect to the “adjustments and modifications.” Indeed, commentators often cite that same case to show that China differs from the U.S. in allowing the protection of AI-generated images. 

The Office did note that the legal positions in many countries are evolving and, in some cases, unclear.

We now eagerly await Part 3 of the Office’s report, which is being prepared while dozens of AI copyright infringement ligations are coming to a head in courts around the country. We should soon start to see some answers to AI infringement and fair use questions, even if only preliminary answers.