Can AI-Generated Works Be Copyrighted? The Law in 2026

The rise of generative AI has forced courts, Congress, and the Copyright Office to confront a question that the framers of the Constitution never anticipated: can a machine create something worthy of copyright protection?

The Human Authorship Requirement

Copyright has always been a human institution. The Copyright Act of 1976 protects “original works of authorship” fixed in a tangible medium of expression, and courts have consistently interpreted “authorship” to require a human creator. This principle was tested directly when Dr. Stephen Thaler attempted to register a work created entirely by his AI system, the “Creativity Machine,” listing the AI as the sole author.

Thaler v. Perlmutter: The Definitive Ruling

The case that settled the question—at least for now—is Thaler v. Perlmutter. Dr. Thaler sought to register an AI-generated image titled “A Recent Entrance to Paradise” with the Copyright Office, naming the Creativity Machine as author and himself as the owner by virtue of the work-for-hire doctrine.

The Copyright Office refused registration. The D.C. district court upheld that refusal in 2023, and the D.C. Circuit Court of Appeals unanimously affirmed in March 2025. Judge Patricia Millett wrote that the Copyright Act “requires all eligible work to be authored in the first instance by a human being.”

On March 2, 2026, the Supreme Court denied certiorari, leaving the D.C. Circuit’s ruling intact. The human authorship requirement is now the settled law of the land.

AI-Assisted vs. AI-Generated: Where the Line Falls

The Thaler ruling addressed a narrow question: whether an AI system can be the author of a copyrighted work. It did not hold that works involving AI are categorically uncopyrightable. This distinction matters enormously.

The Copyright Office addressed the broader question in its Part 2 report on copyrightability, released January 29, 2025. The Office drew a clear line between two categories:

AI-generated works (purely autonomous output) receive no copyright protection. If the AI determined the expressive elements without sufficient human control, the resulting work is uncopyrightable—regardless of how creative the prompt was.

AI-assisted works (human creativity enhanced by AI tools) can receive copyright protection, provided the human author exercised meaningful creative control over the expressive elements of the final work. The Copyright Office has stated that using AI as a tool—much like using a camera, Photoshop, or a word processor—does not disqualify a work from protection.

What Qualifies as Sufficient Human Authorship?

The Copyright Office has provided guidance on what does and does not qualify:

Works that can qualify for copyright protection include those where the human author edits or substantially modifies AI-generated output, makes creative selections and arrangements of AI-produced elements, or combines human-authored and AI-assisted sections into a unified work with original creative expression.

Works that cannot qualify include output generated solely by prompts (no matter how detailed or creative the prompts themselves may be), works where the human merely selected parameters without creative control over expression, and works where AI automated the execution of an idea without human direction over the expressive result.

Disclosure Requirements

Since March 2023, the Copyright Office has required applicants to disclose the use of AI-generated content in works submitted for registration. Applicants must explain which portions of the work were AI-generated and describe the human author’s creative contributions. Failure to disclose AI involvement can jeopardize the validity of a registration.

Congress Responds: The 2026 Legislative Landscape

While the courts have addressed authorship, Congress is focused on a related but distinct question: whether AI companies can use copyrighted works to train their models without permission.

Several bipartisan bills were introduced in early 2026:

The CLEAR Act (Copyright Labeling and Ethical AI Reporting Act), introduced by Senators Adam Schiff and John Curtis, would require companies to file a notice with the Register of Copyrights detailing copyrighted works used in AI training datasets.

The TRAIN Act (Transparency and Responsibility for Artificial Intelligence Networks), introduced by Representatives Madeleine Dean and Nathaniel Moran, would give copyright holders the ability to determine whether their work was used to train AI models without permission.

The White House also weighed in on March 20, 2026, releasing a National Policy Framework for Artificial Intelligence. The Administration’s position is that training AI on copyrighted material does not violate copyright law, while acknowledging that courts should ultimately resolve the question. The framework also recommended that Congress consider enabling collective licensing frameworks to allow copyright holders to negotiate compensation from AI providers.

No final legislation has been enacted, but the momentum toward greater transparency requirements is clear.

What This Means for Creators

If you use AI tools in your creative process, the practical takeaways are straightforward:

You can use AI as a tool in your creative workflow without losing copyright protection—but you must be the one making the creative decisions. Edit, arrange, select, and modify. The more creative control you exercise over the final product, the stronger your copyright claim.

Document your creative process. If a registration is ever challenged, being able to show how you directed, selected, and refined the AI’s output will strengthen your position.

Disclose AI involvement when registering your copyright. The Copyright Office requires it, and failing to do so puts your registration at risk.

And if you are a creator whose works may have been used to train AI models, watch the legislative landscape closely. The CLEAR Act and TRAIN Act, if enacted, would give you new tools to discover and potentially seek compensation for unauthorized use.

This post is for informational purposes only and does not constitute legal advice. If you have questions about the copyrightability of AI-assisted works or about the use of your works in AI training, consult a qualified attorney.

Frequently Asked Questions

Can AI be listed as the author of a copyrighted work?

No. The D.C. Circuit ruled unanimously in Thaler v. Perlmutter (2025) that the Copyright Act requires human authorship, and the Supreme Court declined to review that ruling in March 2026. AI systems cannot be named as the author of a copyrighted work.

Can I copyright something I made with AI assistance?

Yes, if your human creative contribution is sufficiently substantial. The Copyright Office distinguishes between AI-generated works (no protection) and AI-assisted works (protectable if the human exercised meaningful creative control over the expressive elements). Simply entering prompts is not enough—you must edit, arrange, select, or substantially modify the output.

Do I have to tell the Copyright Office I used AI?

Yes. Since 2023, the Copyright Office has required applicants to disclose AI-generated content in registration applications and to describe the human author’s creative contributions. Failure to disclose can jeopardize the validity of your registration.

Is it legal for AI companies to train models on copyrighted works?

This question is unresolved. Courts have not issued a definitive ruling on whether AI training constitutes fair use. The White House’s March 2026 policy framework suggests it does, but several members of Congress disagree. Bipartisan bills like the CLEAR Act and TRAIN Act would increase transparency requirements, and collective licensing frameworks have been proposed. Watch this space.

How long does copyright last on an AI-assisted work?

The same rules apply as for any copyrighted work. If the human author is an individual, copyright lasts for the life of the author plus 70 years. For works made for hire, it lasts 95 years from publication or 120 years from creation, whichever expires first. See How Long Does a Copyright Last? for more detail.

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