Haynes Boone Counsel Annie Allison authored an article for Westlaw Today discussing key takeaways from Part 2 of the U.S. Copyright Office's Report on Copyright and Artificial Intelligence, and the implications on the ability to protect AI-generated works through copyright in the United States.
Read an excerpt below.
The United States Copyright Office (Office) has released Part 2 of its Report on Copyright and Artificial Intelligence which addresses the copyrightability of AI-generated works (here: https://bit.ly/4iYWxh3). It maintains that human authorship and creativity remain essential in the quest to obtain copyright protection for works involving materials created by artificial intelligence.
While Part 1 discusses the legal and policy issues related to artificial intelligence (AI) and digital replicas (here: https://bit.ly/4gejlZO), the recently released "Part 2: Copyrightability" analyzes the type and degree of human contributions required to bring AI generated works within the scope of copyright protection in the United States, as well as the international landscape of how other countries are approaching questions of copyrightability in the AI space and the policy implications of providing additional legal protection to AI-generated material.
The release of "Part 2: Copyrightability" is a direct result of the Office's AI initiative started in early 2023, which aims to issue registration guidance for works incorporating AI-generated content. Following are the key takeaways from "Part 2: Copyrightability" and the implications this report will have on the ability to protect AI-generated works through copyright in the United States.
Copyright requires human authorship
In "Part 2: Copyrightability," the Office affirms that copyright protection in the United States requires human authorship. The Office points to the foundational principles found in the Copyright Clause in the Constitution and the language of the Copyright Act as interpreted by U.S. courts which grants Congress the authority to "secur[e] for limited times to authors ... the exclusive right to their ... writings." U.S. Const. art. I, § 8, cl. 8.
The Supreme Court has further explained that, "the author [of a copyrighted work] is ... the person who translates an idea into a fixed, tangible expression entitled to copyright protection." Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989).
The Office further notes that no U.S. court has recognized copyrights in materials created by non-humans, and courts that have spoken on this issue have directly rejected the possibility. Copyright and Artificial Intelligence Part 2: Copyrightability (2025) (Part 2) at 7-8.
To read the full article in Westlaw Today, click here.
