US Copyright Office Affirms Human Authorship Requirement for AI-Generated Works Amid Global Legal Divergence

A recent multinational marketing campaign utilizing AI-generated visuals and text demonstrated the creative potential of artificial intelligence but also exposed a critical legal vulnerability: the lack of copyright protection for AI-generated content absent human authorship. When a competitor repurposed elements of the campaign, the original firm’s legal team found enforcement impossible due to the absence of copyright safeguards.

This scenario is no longer hypothetical. The United States Copyright Office (USCO) published a comprehensive report titled “Copyright and Artificial Intelligence, Part 2: Copyrightability,” which examines the evolving intersection of copyright law and AI-generated works. The report emphasizes the central question confronting businesses and creators today: who owns the rights to AI-generated content?

Key findings from the report include the reaffirmation that copyright protection is contingent on human authorship. Drawing on the landmark 2023 Thaler v. Perlmutter decision, the USCO clarified that works created solely by AI without significant human creative input do not qualify for copyright registration. The court in Thaler v. Perlmutter explicitly refused to grant copyright protection to AI-generated artwork lacking human intervention.

The USCO advises a case-by-case approach to evaluating AI-generated works, assessing the extent of human creative contribution to determine copyright eligibility. This nuanced assessment reflects the complexity of AI-assisted creativity, where the boundary between human and machine input can be blurred.

Internationally, the report acknowledges divergent legal frameworks. While the United States maintains a strict human authorship requirement, other jurisdictions vary. For instance, China offers copyright protection for AI-generated works only when human involvement is significant. The European Union aligns closely with the US stance, granting protection contingent on demonstrable human creativity. Conversely, the United Kingdom provides automatic copyright protection for computer-generated works when no human author can be identified but limits the term of protection to fifty years, shorter than the standard seventy years for human-created works.

These disparities pose challenges for multinational companies managing intellectual property portfolios across borders. A work protected in one jurisdiction may be unprotected in another, complicating enforcement and licensing strategies.

From a business perspective, the USCO report urges companies to critically evaluate their reliance on AI in creative processes. Without clear copyright protection, AI-generated content is vulnerable to unauthorized use and modification by competitors, undermining exclusivity and brand integrity.

Shira Perlmutter, Register of Copyrights and Director of the USCO, emphasized, “Where human creativity is expressed through the use of AI systems, it continues to enjoy protection. Extending protection to material whose expressive elements are determined by a machine, however, would undermine rather than further the constitutional goals of copyright.”

This legal landscape creates both risks and opportunities. On one hand, businesses face difficulties policing unauthorized use of AI-generated marketing materials, product designs, and branding. On the other hand, the lack of exclusive rights may enable competitors to adapt or repurpose AI-generated content freely, though ethical and reputational considerations remain.

Start-ups and emerging AI enterprises also confront uncertainty. David Siegel, partner at Grellas Shah LLP, noted, “To the extent the U.S. wants to foster the development of AI businesses, the laws around the use of copyrighted works in training AI models need to be sufficiently clear that even an early-stage startup can predictably determine whether their business model will run afoul of copyright laws, and we're not even close to that point.”

In sum, the USCO’s report signals that copyright law currently protects only those AI-generated works with meaningful human authorship. Businesses leveraging AI must develop internal processes to ensure human creative input is documented and integral to content creation. This approach is essential to navigate the evolving and fragmented legal environment surrounding AI and intellectual property rights.