IP: Copyright

Introduction

With the technological innovation of AI, the question arises as to how to protect intellectual property rights linked to AI. Copyright is at the heart of intellectual property protection in this field, one of the biggest issues being the extent to which AI-generated and AI-assisted outputs can be protected. Copyright is territorial in nature and therefore each country is free, in principle, to afford the benefit of copyright protection as it sees fit. We will see below how copyright is treated, particularly in the United States, as well as how copyright infringement issues arise relating to AI systems.

Human-centric concepts of copyright

During the 19th century, cross-border trade prompted a number of countries to create a minimum and shared framework of reference for copyright law across the globe. The first iteration of this was the 1886 Berne Convention, which still applies today. Under this framework, it is possible to say that in copyright terms, the existence of a “work” requires the presence of the following concepts:

• An expression: that is, any “production in the literary, scientific and artistic domain” (per Article 2(1) of the Berne Convention);
• An author: “protection shall operate for the benefit of the author and his successors in title” (per Article 2(6) of the Berne Convention). This requirement for a link between an expression and a physical person is therefore shared between all the signatories of the Berne Convention. By way of example, in the United States, the registration of a work with the Copyright Office is only authorized if it has been created by a human. In Australia, the Supreme Court refused protection to a database automatically generated by AI. More recently, in the infamous “monkey selfie” case, in which the relevant camera equipment was set up such that a monkey, rather than a human, triggered the photograph, the court found that animals have no legal authority to hold copyright claims. Creation thus seems to be the prerogative of humans, the fruit of their imagination made art; and
• Originality [Berne 2 (3)]: referred to by the Court of Justice of the European Union as “the author’s own intellectual creation,” is present when authors can exercise free and creative choices and put their personal stamp on the work. Copyright protects the creative work of a human being. The work must therefore be traceable to its author.

In most simple terms, international law currently appears only to contemplate the notion of a copyright work created by a human creator. Where an AI system is truly autonomous, and the works it creates are devoid of human involvement or creative input, the applicability of most conceptions of a copyright work would break down, and the resulting work would likely be deemed to be in the public domain.

The situation in which a human creates a work with the assistance of AI is somewhat different and raises the possibility that the human controlling the AI system may be deemed the author of the work. In practice, this appears to be a factual matter resting on the degree of human input involved:

• Where the human input remains creative, that is, AI is a mere “tool,” the consensus appears to be that copyright protection is enjoyed by the creator using that tool;

• However, where the human input is more limited, it appears that in most jurisdictions the resulting work would not be deemed protectable by copyright.

How much input is enough input is a question that courts will likely struggle with for years to come.

The Human Artistry Campaign

Should AI-generated works be protected by copyright? When considering whether to afford copyright protection to a machine, the traditional justifications for copyright protection appear to break down. The Anglo-Saxon notion of copyright as an incentive to creation appears to have little meaning in the context of AI – an AI system does not seek protection of its personal expression nor financial reward for its work and will generate content regardless of its copyright protection. The French grounding of copyright protection in natural rights also appears to break down – AI systems are still far from being considered individuals with their own personalities. There may also be a more fundamental reason to distinguish between human and AI-generated works. Some argue that copyright should promote and protect human creativity, not machine creativity. According to this view, works created by humans should be given protection, but those generated by machines – and potentially competing with human-created works – should not. 

At SXSW 2023, a broad coalition announced the launch of the Human Artistry Campaign to ensure AI technologies are developed and used in ways that support human culture and artistry – and not ways that replace or erode it. The campaign has grown exponentially and now includes members across the globe in journalism, photography, and voice acting, as well as major global organizations representing songwriters, composers, publishers, and independent music.

In the United States

The U.S. Copyright Act protects “original works of authorship fixed in any tangible medium of expression ….” While neither the Act nor the U.S. Constitution expressly address the requirement of human authorship, technological advancements over the years have prompted discussions and case law concerning whether the use of tools in the creative process should limit the extent of a work’s eligibility for copyright protection. Well before the Copyright Act of 1976 was enacted, in 1884, the U.S. Supreme Court settled a debate around machine-generated work by extending copyright protection to photographs, of which the photographer was the author.¹

The U.S. Copyright Office’s policy is that it will register a work only if the work’s traditional elements of authorship were authored by a human and not by a machine.² The Office distinguishes between works autonomously generated by AI, which are not protectable by copyright, and works created with the assistance of AI, for which a case-by-case analysis is necessary to determine whether the expressive elements are the product of a human or a machine. In instances where works contain AI-generated material as well as the results of human authorship, the Office has stated that copyright will only protect the results of human authorship, which will be considered independent of the copyright status of the AI-generated material.

Importantly, the Office now requires copyright registration applicants to disclose the inclusion of AI-generated material in a work submitted for registration, provide an explanation of the human author’s contributions to the work, and expressly disclaim AI-generated content that is more than de minimis. They have also made it clear that creators risk the cancellation of their registration where disclosure is not properly made.

Furthermore, the impending ubiquity of AI tools in creative works could soon complicate full disclosure of their use. The near future promises a seamless integration of AI into creative technology workflows, including industry-standard software from leading companies such as Adobe. Will a screenwriter utilizing Google’s Bard or Bing’s ChatGPT integration need to specify the instances in which these tools aided their research or ideation phases? Similarly, will music producers be required to declare each plug-in or digital audio workstation employing any level of automation? These questions underscore the complexities in determining the extent of disclosure necessary for AI contributions. If the work has been autonomously generated by AI without any human involvement, then the Copyright Office leaves no room for doubt: such works “lack the human authorship necessary to support a copyright claim.” 

This strict position was challenged by software engineer Stephen Thaler, who sued the Copyright Office after it refused to register A Recent Entrance to Paradise, an artwork autonomously generated by his AI system, the “Creativity Machine.” The District Court for the District of Columbia upheld the Copyright Office’s denial in Thaler v. Perlmutter, holding that human authorship is required under the Copyright Act. The D.C. Circuit unanimously affirmed in March 2025, holding that the Copyright Act “requires all eligible works to be authored by a human being” and that a machine cannot be an author. The Supreme Court denied certiorari in March 2026, effectively closing the door on claims that AI can be an author under U.S. copyright law. Importantly, the DC Circuit noted that its ruling does not prohibit copyrighting works made with the assistance of AI; the rule only requires that the author be a human being.

In January 2025, the U.S. Copyright Office released Part 2 of its AI report, addressing the copyrightability of AI-generated outputs. The report maintained that human authorship remains a bedrock requirement and that mere selection of prompts, even if detailed, does not yield a copyrightable work. However, the report identified categories of potential human contributions to AI-assisted works, such as using AI to facilitate the creative process, including for editing; using expressive inputs, such as a hand-drawn image for modification; and making creative arrangements of or modifications to AI-generated content.    

The boundaries of copyright protection for creative works involving AI have profound implications. A work not protected by copyright falls within the public domain, which means that it is owned by the public and can be used by anyone, without the need to obtain permission from the creator of the work and without any compensation obligation. 

Who owns the copyright in an AI-generated work?

The human providing the creative input embodied in the AI-generated work will be considered the author of the resulting work where the involvement of the human is sufficiently “creative” to give rise to the copyright protection. In the event of a challenge, however, the human may need to prove the extent of their involvement. Whether an AI-generated work has the required quality of originality is likely to be challenged more frequently than in the case of works that are not created using AI.

Can AI-generated output infringe copyright in another work?

United States

Certain rights holders, such as the plaintiffs in the class action against DeviantArt, Midjourney, and Stability AI, argue that if original works were included in the training set, then the outputs are necessarily derivative works infringing the copyright in the originals.³ This approach, which asks the court to hold AI companies liable regardless of whether the new work incorporates elements from the original work, faces significant hurdles under existing copyright precedent. Indeed, “to constitute a derivative work, ‘the infringing work must incorporate in some form a portion of the copyrighted work … [and] must be substantially similar to the copyrighted work.’”⁴

In the absence of any copyright infringement precedent in the context of AI-generated output, we must consider that a court will apply a standard copyright infringement analysis to determine whether outputs infringe underlying works and compare AI-generated works to the underlying work to determine whether the works are substantially similar. We can expect that AI-generated works will not be exempt from the courts’ disparate application of the substantial similarity test for purposes of copyright infringement, based on the facts of the case and the characteristics of the two works. While this analysis is highly fact-specific, the following principles are most likely to be addressed in copyright infringement proceedings with respect to AI-generated outputs:

1. Only substantial similarity in protectable expression may constitute prohibited copying, so courts should distinguish between the protected and unprotected material in a plaintiff’s work.⁵ Unprotectable elements include elements of a genre or style, which should not be taken into consideration in a copyright infringement analysis. An artwork created in the “style of” a visual artist, or a sound recording in the “genre” of a recording artist would not necessarily be deemed infringing derivative work, even if the name of such artist was used in a text-to-image prompt.
2. Even if an output incorporates protectable elements from an underlying work, it will not necessarily be deemed infringing if the use of the underlying work in the new work is de minimis, meaning insubstantial or unrecognizable.
3. If the two works are substantially similar, the defendant can raise the fair use defense to demonstrate that the output is non-infringing. At the output stage, the analysis does not focus on copies being made for a functional purpose, but on the new work generated by the AI program, which is much more likely to serve the same purpose of creative expression or entertainment as the underlying work (first factor). Further, the new work would be directly competing with the underlying work, particularly if a text-to-image prompt is used to obtain a work in the “style” of an artist (fourth and most important factor).

Since this guide was published, U.S. courts have issued the first fair use rulings in AI training cases. In Thomson Reuters v. Ross Intelligence (D. Del. Feb. 11, 2025), the court rejected a fair use defense where AI training was used to create a competing product, though the case involved non-generative AI. In Kadrey v. Meta Platforms (N.D. Cal. June 25, 2025) and Bartz v. Anthropic (N.D. Cal. June 23, 2025), courts found that training large language models on copyrighted books was fair use because it was “highly transformative,” though market dilution could change the analysis. 

At the output stage, most discussions address copyrightability and copyright infringement as two separate issues, which can lead to inconsistencies because of the complex framework of copyright law. If a work generated by AI is not protectable by copyright, it would fall into the public domain (from a copyright perspective; it could be separately protected as a trade secret). If the public domain work is substantially similar to an existing copyrighted work, can it be deemed an infringing derivative work and, if so, would that bring the AI-generated work back into the realm of copyrighted works? Would the owner of the underlying work own the AI-generated derivative work? As exemplified by this logical loop, the inevitable question of whether the existing copyright framework is flexible enough to propose coherent answers remains to be resolved.

The development of a legal and regulatory framework with respect to AI-generated works must also address who should be liable if the output infringes an underlying copyright, and whether any protections apply. While AI platforms’ terms of use could pass liability onto the end user, doing so would not resolve the underlying issue and would significantly undermine the public’s confidence in AI platforms. The level of control exercised by the end user over the final product could be relevant in the analysis, such that the end user could potentially be liable if the infringing work is the result of the end user’s vision, while the AI engine could potentially be liable if the infringing work is a result of a random process with marginal contributions from the end user. In cases where the end user is liable due to such user’s extensive involvement in the creation of the infringing work, the AI company could potentially be exposed to liability under the doctrine of vicarious infringement, which applies to any person who has the right and ability to supervise the infringing conduct and has a direct financial interest in the infringing activity. As an underlying direct infringement is necessary for a court to find a defendant liable for vicarious copyright infringement,⁶ the AI company (or the defendant in a vicarious copyright infringement claim) would be exempt from liability if no direct liability of the end user is found, including where a valid fair use defense is raised by the end user.

Since this guide was first published, U.S. courts, the Copyright Office, and international tribunals have begun to provide concrete answers to such questions. The D.C. Circuit has confirmed that AI cannot be a copyright author. The Copyright Office has issued guidance establishing that only human-authored elements of AI-assisted works are copyrightable. Federal courts have issued the first fair use rulings on AI training, finding transformative use in some contexts but warning that market dilution could change the analysis. While significant uncertainty remains, particularly regarding the scope of fair use for AI training, the boundaries of market dilution, and the allocation of liability for infringing AI outputs, the legal framework is maturing faster than many anticipated. Companies in the entertainment and media sector should actively monitor these developments and ensure their AI-related contracts, clearance processes, and compliance programs align with the developing law.

^{1. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884).2. U.S. Copyright Office, Statement of Policy (March 16, 2023).3. Andersen et al v. Stability AI Ltd.4. Litchfield v. Spielberg, 736 F.2d 1352, 1357 (9th Cir. 1984).5. Swirsky v. Carey - 376 F.3d 841 (9th Cir. 2004).6. Metro-Goldwin-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005).}