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Client Alert: Copyright Protection for Works Made with AI Tools

January 30, 2025

Yesterday, the Copyright Office issued Part 2 of the Copyright and Artificial Intelligence report that addresses copyrightability of works created using generative AI tools (available here).  In short, the Office reaffirmed its March 2023 Guidance and stated that works that are “purely AI-generated” or lack “sufficient” human control over the resulting expression are ineligible for registration.  Although the courts (and perhaps Congress) will need to extend copyright protection to works created using AI tools, until then, the Report has insights for content creation industries on how to obtain copyright protection for these works. 

I. Works Made With Prompts         

             The Office stated that directing generative AI tools using “prompts alone” is insufficient human control to make the work copyrightable.  This is true even for works that are created using multiple, iterative prompts, or other forms of prompt engineering.  Prompts are merely “instructions that convey unprotectible ideas”; providing even the most detailed set of prompts or revising them hundreds of times is still just “re-rolling” the gen-AI dice without “altering the degree of control over the process.”  Report at 19-20.

             This position is based on the fact that generative AI tools can create “a seemingly limitless number of variations” in response to a prompt such that a user “lacks control over the conversion of their ideas into fixed expression.”  Report at 16, 19.  This is in tension with the Bleistein non-discrimination principle and other caselaw that says that, no matter the tools or the processes that were used to produce the creative work, copyright protection extends to the resulting expression.  The Office analogized to joint authorship cases and concluded that a user who provides even detailed prompts is like a “person who merely describes to an author what the commissioned work should do or look like,” and is not an author.  Report at 9-10, 18. 

II. Works Made with Expressive Inputs

            The Office stated that using AI as “an assistive tool” or “the incorporation of AI-generated content into a larger copyrightable work” does not affect the copyright protection for the resulting work.  Report at 1.  However, the registration will exclude the work’s AI-generated portions. 

             For example, if a user combines a prompt with an “expressive input,” such as a draft of an artwork that the prompt will direct an AI tool to modify, the resulting output may be copyrightable to the extent that the expressive input is “perceptible” in the output.  Report at 24.  But the Office will exclude from the registration any new expression that generative AI added.  Report at 23.

             Likewise, where “the user appears to be prompting a generative AI system and referencing, but not incorporating, the output in the development of her own authorship,” this is considered using generative AI as a “brainstorming tool” and it will not undermine the copyrightability of the resulting work.  Report at 12.  Thus, an author can use generative AI to come up with an initial outline for a script or for song “ideation” so long as the AI outputs are not perceptible in the final work. 

             If prompt-generated outputs appear in the final work, the work as a whole may still be copyrightable, but the registration would have to exclude the AI-generated portions.  For example, the incorporation of “AI-generated special effects or background artwork” would not affect the copyrightability of the “larger human-authored” films, videogames, or other works “as a whole,” but the copyright owner would not have a registration over the AI-generated components.  Report at 27.

             This legal fiction may cause problems for authors.  If such human-AI-hybrid works are deemed only derivative works or compilations (Report at 23-24), any copyrights in them would protect only the “new” expression.  That means that someone could copy the AI-generated portion with impunity.  And where AI tools help create new works, it is not always possible to “keep track” of the AI-generated portions that are incorporated into a complex work.  Even though comments from the MPA and others raised this issue, the Report did not address the Office’s recent guidance stating that an applicant must “disclaim” the AI-generated portions of the work.

III. Works Made with Modification of Outputs

             The Office stated that adding human expression after an AI tool generates outputs in response to user prompts can result in copyrightable (and registrable) expression.  Whether the added expression is sufficient to meet the originality bar would “depend on a case-by-case determination,” based on “existing law.”  Report at 27, 40, Summary.

             For example, “human authors should be able to claim copyright if they select, coordinate, and arrange AI-generated material in a creative way.”  Report at 24.  Here too, however, the registration would exclude “AI-generated material.”  Report at 3 n.11, 24.  For example, the Office recently granted registration to the selection and arrangement of AI-generated images in a comic book, but not to the images themselves.

             Likewise, a work where “a user edits, adapts, enhances, or modifies AI-generated output in a way that contributes new authorship” could be protectible as a human-authored work, but the registration would “not extend to the underlying AI-generated content itself.”  Report at 25.

IV. Takeaways for Copyright Protection

             Until the courts provide guidance, the following strategies may be helpful in preserving the ability to seek copyright protection for content created using generative AI tools:

  • Do not use prompts alone to generate audiovisual, sound recording, or literary works. Instead, feed the generative AI tools with expressive inputs that reflect artistic decisions that can be made at that stage of the process.  This would likely require the use of the enterprise version of the AI software, and confirming with the AI vendors that the inputs would be kept confidential and not used to train the model for anyone else’s (e.g., the public’s) use. 

  • Do not use generative AI tools as a single-step tool. Instead, go back and forth between prompting AI outputs and adding documented human decisions into the AI tool.  This will permit the characterization of AI uses as a “brainstorming tool” or as providing editorial enhancements that the Office suggests would retain human authorship of the final work.

  • When applying for registration, submit the version of the work that reflects the human ordering, placement, and edits of AI-generated visual or literary pieces. Do not submit the work in a form that lacks the final sequencing or edits to the outputs.  This will help obtain the copyright protection over any original selection-and-arrangement or post-output edits.

             By using generative AI to assist in executing human artistic direction at different stages of the creative process, the resulting work is more likely to reflect sufficient human control and be registered in its entirety.  This can help avoid administrative and practical burdens of having to “disclaim” AI works.

             Here’s an example.  At an initial stage of preparing a screenplay from a treatment, the screenwriter can provide the AI tool with not just a series of prompts, but also the treatment itself.  Because any instructions given in the prompts alone, no matter how detailed, would not be treated as human authorship, the screenwriter should try to prepare a version of the treatment that is annotated with the directions in the prompt, for example, by notating in the treatment where certain details should be added, or annotating in the treatment any narrative reordering that needs to be done. 

             Then, instead of responding to a usable AI output with another set of prompts, a screenwriter would treat the output as a preliminary outline from a brainstorming session to create a new expressive AI input that is farther along in the process.  This next “draft” should reflect human choices that, for example, reject some AI decisions, add new expressions, or rearrange the story ideas in the output. 

             At the final stages of the process, AI tools should be used to provide only fine details and enhancements, the type of AI assistance—such as “removing unwanted objects or crowds from a scene”—that the Office deemed as using the AI “tool to assist in the creation of works” rather than “using AI as a stand-in for human creativity.”  Report at 11-12.  This kind of iterative use of generative AI at different stages of production can be applied to post-production editing, song composition, video game code writing, and other content creation efforts.  Another advantage is that human decisions are documented at every stage—and as expressive inputs—to prove human control and artistic direction.

             The content creator should not do all the human decision making at the front end or the back end of the use of generative AI.  That risks having the Office exclude from the copyright the perceptible portions of generative AI that it deems are not human-made.  Ultimately, content creators know that human authors must conceive, control, and complete a film, a song, or a video game.  Using generative AI at different stages of creating a work can help authors harness the power of this new tool and still have a meaningful ability to obtain copyright protection for their work.

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If you have any questions about this alert or would like a copy of any of the materials mentioned in it, please contact:

Bobby Schwartz
Email: robertschwartz@quinnemanuel.com
Phone: +1 213-443-3675

Daniel C. Posner
Email: danposner@quinnemanuel.com
Phone: +1 213-443-3220

Bill Patry
Email: williampatry@quinnemanuel.com
Phone: +1 212-849-7064

Moon Hee Lee
Email: moonheelee@quinnemanuel.com
Phone: +1 213-443-3627

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