Four questions to help creators understand copyrightability in the age of AI

With the prevalence of AI in our daily lives, it is important for creators to have a sense of what is (and isn’t) copyrightable when they are using AI to assist with the work they are producing. The law is catching up to AI use in the sense that there are likely many scenarios of AI usage that do not have legal precedent or guidance as to copyrightability. However, we do have some direction given the existing case law. This post offers background information to help creators generally conceptualize what is and isn’t copyrightable when they use AI given the current law and guidance. This post is not meant to be a comprehensive guide. If you are looking for a formal copyrightability assessment, we encourage you to engage an attorney!

1.     Are you familiar with the requirements for copyrightability?

In legal jargon, copyright law protects “original works of authorship fixed in any tangible medium of expression in the following categories: (1) literary works; (2) musical works; (3) dramatic works; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; and (6) motion pictures and other audiovisual works.”[1]

What this means is that in order to be copyrightable, a work needs to meet the originality, authorship, and fixation requirements while falling into one of the six above-referenced categories. As discussed in our post about the benefits of copyright registration, registration is not a requirement for copyrightability; qualifying works are covered by copyright law upon fixation. You can find more detailed information about originality, authorship, and fixation below:

• “Original” works are those that are independently created and sufficiently creative.[2] Independently created means that you created it without copying somebody else’s work as discussed further in question 4 below. The requisite creativity is minimal but not unenforced. For example, an alphabetized telephone directory is not sufficiently creative to be protected by copyright law.[3]

• “Authorship” has been interpreted as “human authorship” by U.S. courts and the U.S. Copyright Office (the “Office”).[4][5] For example, a photo taken by a monkey is not copyrightable.[6] However, a photo taken by a human is copyrightable.[7] The past few years have given us direction as to how the Office and courts assess the issue of work containing material generated by as discussed in questions 2 and 3 below.

• “A work is ‘fixed’ in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”[8] If the work is saved on your computer, you do not need to worry about this requirement.

If you’ve created something using, or with the assistance of AI, it is likely that the “originality” and “authorship” requirements will be relevant and discussed further in questions four and two, respectively.

Note: Ideas and facts are not copyrightable.[9] You cannot assert copyright law to stop someone from copying an idea or fact. However, you can assert copyright law to stop someone from copying an expression of an idea or a fact. For example, copyright law cannot be used to stop someone from creating a blog post about copyrightability, but it can be used to stop someone from copying this exact blog post (our expression and discussion about copyrightability).

2.     Do you create any parts of your works without using AI?

If you used AI to generate components of your work, it is likely that those AI generated components are not copyrightable (the “author” will likely be considered to be the AI program and the human authorship requirement will not be met).[10] However, if those AI generated components are part of a larger work, the components that you created yourself are likely copyrightable.

A good illustrative example is the U.S. Copyright Office’s treatment of the registration application for “Zarya of the Dawn.” This application was for a comic book where the (human) author used an AI program to generate the images for the book but wrote the text and story of the comic. The Office ultimately concluded that the images in the book were not copyrightable but the text and “selection and arrangement of images and text” were.[11]

Here, the author of Zarya of the Dawn argued that she was the author of the images, not the AI program, because she used a multi-step series of many text prompts to generate the images. The Office reasoned that the AI program was the author of the images, not the human author, because the AI program was not used as a tool. Rather, it generated images in an unpredictable way “with a field of visual ‘noise,’ which is refined based on tokens created from user prompts relating to the AI program’s database.” Thus, the human user’s prompts influenced the generated image but do not dictate a specific result.[12]

This leaves open some questions about scenarios where the AI program operates in a more predictable way such that the author can dictate a result or where the author is using work of their own as a prompt. These scenarios do not have clear answers with respect to copyrightability.

What this means for creators is that the number of prompts you use and the amount of time you spend using AI to generate something is not likely to influence whether the Copyright Office or a court thinks the resulting work is copyrightable. Until there is a scenario where AI is used as a tool by a human user in a predictable way, it is likely that AI programs used to create a work will be considered the author and the resulting work (generated by AI) non-copyrightable.

3.     Are any of your works compilations?

As alluded to in the Zarya of the Dawn example, a compilation qualifies for its own copyright even if components of the compilation are not copyrightable. Compilations are works “formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.”[13]

The scope of a copyright in a compilation is limited. The copyright extends to the original author contributions (including the selection and arrangement of the materials but not the facts, information conveyed, or preexisting materials). So, to continue with our comic example, the author of Zarya of the Dawn can assert copyright infringement against those who make complete copies of the comic but not against those who copy just the images contained therein.

4.     Do you use anyone else’s work to create your resulting work?

This question is more relevant to risk mitigation than copyrightability because, in reality, if you used any third-party work, the copyright infringement implications are likely to be greater than the copyrightability implications. However, it is worth thinking about both.

With respect to copyrightability, this post will only discuss a limited scenario where you incorporate third-party work with whatever work was generated by AI. Incorporating third-party work into a compilation (even if it includes your original work) will not convey any rights over the third-party work even if you have a license to use that work. In this scenario, it is likely that the only copyrightable aspects of the work will be your original contributions which could include your original work or a qualifying selection and arrangement of preexisting works (a compilation).

In order to copy and use third-party work (assuming it is not in the public domain) to which you do not and will not own the copyright, without infringing that copyright, requires a license.[14]Mere online accessibility or crediting the author does not equate to the right to use third-party work. You do not need permission to use works that are in the public domain such as non-copyrightable things and works for which the copyright has expired. If the work you used is not in the public domain, you can check for any licensing terms that may grant you the right to use the work. Otherwise, you can try to contact the copyright owner to obtain a license to use the work.

Determining copyrightability in the age of AI can be complicated. If you are a creator with questions about copyrightability, we invite you to book a Consultation with us!

References:

[1] 17 U.S.C. § 102(a).

[2]SeeFeist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).

[3]See id.

[4]Thaler v. Perlmutter, 130 F.4th 1039, 1052 (D.C. Cir. 2025).

[5] U.S. Copyright Off., Circular 1: Copyright Basics (2021).

[6]See Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018).

[7]Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57–59 (1884).

[8] 17 U.S.C. § 101.

[9]SeeFeistv. Rural Tel. Ser. Co., 499 U.S. at 350.

[10]Thaler v. Perlmutter, 130 F.4th at 1052.

[11] U.S. Copyright Cancelled Reg. No. VAu001480196.

[12]See id.

[13] 17 U.S.C. § 101.

[14]See 17 U.S.C. § 106 for a full list of exclusive rights in copyrighted works.