Can AI-Generated Works Be Copyrighted?

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.”

The full D.C. Circuit denied en banc rehearing on May 12, 2025, and on March 2, 2026, the Supreme Court denied certiorari, leaving the ruling intact. As a practical matter, the human authorship requirement is now firmly established—because all challenges to Copyright Office registration decisions are heard in the D.C. Circuit, no other appellate court is positioned to reach the question.

Watch: LegalEagle on Disney’s Landmark AI Copyright Case

LegalEagle breaks down the legal battle between Disney and AI image generators—and what it means for copyright law.

U.S. Copyright Office Guidance: AI-Assisted vs. AI-Generated

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 U.S. 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.

The AI-Generated vs. AI-Assisted Distinction

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 expressed the view that training AI models on copyrighted material does not violate copyright law, while acknowledging that “reasonable arguments to the contrary exist” and that courts should ultimately resolve the question. The framework recommended that Congress not legislate on fair use in a way that would influence judicial outcomes, but 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.

Fair Use and AI Training: The First Rulings

The authorship question is settled, but a separate and equally consequential line of cases is testing whether AI companies can use copyrighted works to train their models without permission. Three district courts issued the first substantive rulings in 2025, and they disagreed.

In Thomson Reuters v. Ross Intelligence (D. Del., February 2025), Judge Stephanos Bibas found that training an AI legal research tool on copyrighted headnotes to build a competing product was not fair use. In Bartz v. Anthropic (N.D. Cal., June 2025), Judge William Alsup ruled that training on lawfully acquired books was fair use, but that downloading pirated copies was not—a distinction that led to a $1.5 billion settlement, the largest copyright settlement in U.S. history. And in Kadrey v. Meta (N.D. Cal., June 2025), Judge Vince Chhabria found training to be fair use even when pirated copies were involved, disagreeing with Alsup.

The Copyright Office weighed in with its Part 3 report on AI training, released in May 2025, concluding that AI training is not categorically fair use and that using pirated datasets weighs against a fair use finding.

These rulings and the Office’s analysis make clear that the fair use question will likely require resolution by the appellate courts or Congress.

The Next Test: AI-Assisted Copyrightability

One case to watch is Allen v. Perlmutter (D. Colo.), in which artist Jason Allen is challenging the Copyright Office’s refusal to register Théâtre D’opéra Spatial, an image he created using Midjourney through hundreds of iterative prompts and extensive post-processing. Unlike Thaler—which asked whether AI can be the author—Allen asks whether iterative, creative prompting and editing constitute sufficient human authorship. Summary judgment briefing was completed by early 2026, making this potentially the next landmark ruling on AI copyrightability.

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.

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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 U.S. 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.

What does the U.S. Copyright Office say about AI-generated works?

The U.S. Copyright Office’s Part 2 report on copyrightability, released January 29, 2025, draws a clear line. Purely AI-generated works (where the AI determined the expressive elements without sufficient human control) receive no copyright protection. AI-assisted works (where a human exercised meaningful creative control over the expressive elements of the final work) can receive protection. The Office has also stated since March 2023 that applicants must disclose any AI-generated content when registering a work.

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?

It depends. Three district courts issued the first rulings in 2025 and reached different conclusions. One found AI training was not fair use when it produced a competing product; another found it was fair use for lawfully acquired works but not pirated ones; a third found it was fair use even for pirated copies. The Copyright Office’s Part 3 report concluded AI training is not categorically fair use. The White House’s March 2026 framework expressed the view that it does not violate copyright law but acknowledged reasonable arguments exist on both sides. Appellate courts will likely need to resolve the split.

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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Sources:

Thaler v. Perlmutter, D.C. Circuit Opinion (March 18, 2025)

Copyright and Artificial Intelligence, Part 2: Copyrightability, U.S. Copyright Office (January 29, 2025)

Copyright and Artificial Intelligence, Part 3: Generative AI Training, U.S. Copyright Office (May 2025)

Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 FR 16190, U.S. Copyright Office (March 16, 2023)

National Policy Framework for Artificial Intelligence, The White House (March 20, 2026)