Can I Copyright a Work that AI Helped Create?

By Teghan O'Connell

The US Copyright Office (USCO) and many others have been looking for an answer to the question of whether the use of AI will affect the copyrightability of creative works. With the rise of AI, and large language models like Chat GPT, people are asking more and more whether the work they create using AI models can be considered “theirs.”

In February 2023, the comic book Zarya of the Dawn had its copyright revoked. [1] The book, written by Kris Kashtanova, initially received a full copyright after filing an initial application. However, the copyright was revoked because Kashtanova failed to disclose the fact that all the images in the book were created by AI (this was discovered after Kashtanova discussed using an AI model on social media [2]). The US Copyright Office adjusted the copyright, so Kashtanova only owned a copyright for the writing and the layout of the book, and the US Copyright Office noted that Kashtanova specifically did not own the images. [3]

Zarya of the Dawn is just one example of the nuanced AI-related legal issues going to court in recent years. The discourse around the comic book helps the USCO answer a pressing question: can works created with AI be copyrighted? The answer is both yes and no.

In 2023, the US Copyright Office (USCO) released a Notice of Inquiry into the legality of copyrights and AI. The first of what is assumed to be three reports on the subject was released on July 31, 2024. The first report covered the topic of “deepfakes” and digital replication of copyrighted work. In the report, titled Copyright and Artificial Intelligence Part 1: Digital Replicas, the USCO pushes for new statutes to be put in place to protect people from having their image or work stolen and used. The office wishes to see protection put in place for all persons, not just celebrities, and for the works to be prosecuted as copyright infringement and dilution. The first report outlines in detail what the statutes should cover and how they would protect all from personal harm. [4]

The second report made it clear that the ownership of a work created with AI varies on a case-by-case basis. The report, titled Copyright and Artificial Intelligence Part 2: Copyrightability attempts to answer the above question of AI and copyright. [5] The copyrighted status depends on how much you used the AI software to help you and whether your work is still detectable in the output. The biggest takeaways from the report are as follows:

1.      Works created solely by an AI model cannot be copyrighted, human authorship is necessary. Guiding an AI model with prompts does not meet the standards of authorship as prompts are ideas, which cannot be copyrighted. [6]

2.      As stated above, AI-assisted works can be copyrighted, but need to be reviewed on a case-by-case basis to determine how big of a role the model played in the creation of the work. [7] It is unclear as of now who will be reviewing these works or how they will verify the amount of AI use.

3.      If a human inputs a copyrightable work into an AI model, and the work is still present in some way in the output, then the work is generally copyrightable. [8]

4.      AI output with material modifications may be copyrightable but would need to be reviewed to measure how much the work has been changed. [9]

5.      If a human author creatively selects or arranges AI work in a certain manner, the formatting or compilation may be copyrighted, however the output itself may not be (like in Zarya of the Dawn). [10]

6.      The USCO will be watching foreign copyright agencies to see how they adjust to the new technology. [11] So far, US AI and copyright policies align with those from the EU, Japan, and Korea. [12]

The USCO has decided that no new legislation is necessary for these new guidelines to function and expects authors to self-report use of AI, taking applicants at their word until otherwise proven. The application process will remain mostly unchanged, apart from the brief AI disclosure section.

The USCO is expected to release the third installment in its reports on Copyright and Artificial Intelligence at some point in the next year. It is expected to cover the legality of AI companies using copyrighted works to train their models without consent from the authors. Recently, music companies Sony Music, Universal Music, and Warner Music have sued AI music-making models Suno and Udio for training their models with copyrighted music. [13] The plaintiffs claim the AI models have committed major copyright infringement. The music companies state that the models profit from the work they produce, work that is fundamentally based on the copyrighted music owned by the music companies. [14] The music companies also claim the product produced by the models is significantly similar to their music. The AI companies claim that their use of the music to train the AI models falls under a “fair use” protection. [15] The decision will guide the future decisions of copyright infringement cases involving the training of AI with copyrighted works.

[1] Carolina Pina, Copyright and AI Generated Works: Zarya of the Dawn, Garrigues (Mar. 16, 2023), https://www.garrigues.com/en_GB/garrigues-digital/copyright-and-ai-generated-works-zarya-dawn

[2] Naik, Naik, and Co., Only Humans Can Claim Copyright; USCO’s Decision In “Zarya Of the Dawn,” Naik, Naik, and Co. (Dec. 29, 2023), https://naiknaik.com/2023/12/29/only-humans-can-claim-copyright-uscos-decision-in-zarya-of-the-dawn/

[3]  Zach Lewis, Key Insights on Copyright and AI from the US Copyright Office’s 2025 Report, mondaq (Feb. 6, 2025), https://www.mondaq.com/unitedstates/copyright/1580572/key-insights-on-copyright-and-ai-from-the-us-copyright-offices-2025-report

[4] United States Copyright Office, Copyright and Artificial Intelligence Part 1: Digital Replicas, July 2024, https://www.copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-1-Digital-Replicas-Report.pdf

[5] United States Copyright Office, Copyright and Artificial Intelligence Part 2: Copyrightability, January 2025, https://www.copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-2-Copyrightability-Report.pdf

[6] Daniel Tencer, Can AI-generated content be copyrighted? Here’s what a new report from the US Copyright Office says..., Music Business Worldwide (Jan. 30, 2025), https://www.musicbusinessworldwide.com/can-ai-generated-content-be-copyrighted-heres-what-a-new-report-from-the-us-copyright-office-says1/

[7] Hogan Lovells, US Copyright Office issues report on the copyrightability of AI assisted and generated works, Lexology (Feb. 4, 2025) https://www.lexology.com/library/detail.aspx?g=2487a957-ba7e-4ee2-8ae0-89c5ad4ba7fd&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=AIPLA+2013+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2025-02-06&utm_term=

[8] Hogan Lovells, US Copyright Office issues report on the copyrightability of AI assisted and generated works, Lexology (Feb. 4, 2025) https://www.lexology.com/library/detail.aspx?g=2487a957-ba7e-4ee2-8ae0-89c5ad4ba7fd&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=AIPLA+2013+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2025-02-06&utm_term=

[9] Hogan Lovells, US Copyright Office issues report on the copyrightability of AI assisted and generated works, Lexology (Feb. 4, 2025) https://www.lexology.com/library/detail.aspx?g=2487a957-ba7e-4ee2-8ae0-89c5ad4ba7fd&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=AIPLA+2013+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2025-02-06&utm_term=

[10] Hogan Lovells, US Copyright Office issues report on the copyrightability of AI assisted and generated works, Lexology (Feb. 4, 2025) https://www.lexology.com/library/detail.aspx?g=2487a957-ba7e-4ee2-8ae0-89c5ad4ba7fd&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=AIPLA+2013+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2025-02-06&utm_term=

[11] Hogan Lovells, US Copyright Office issues report on the copyrightability of AI assisted and generated works, Lexology (Feb. 4, 2025) https://www.lexology.com/library/detail.aspx?g=2487a957-ba7e-4ee2-8ae0-89c5ad4ba7fd&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=AIPLA+2013+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2025-02-06&utm_term=

[12] Samuel Cohen, Tiana Garbett, The Copyright Offices Latest Guidances on AI and Copyrightability, The National Law Review (Feb. 3, 2025), https://natlawreview.com/article/copyright-offices-latest-guidance-ai-and-copyrightability#google_vignette

[13] Daniel Tencer, Can AI-generated content be copyrighted? Here’s what a new report from the US Copyright Office says..., Music Business Worldwide (Jan. 30, 2025), https://www.musicbusinessworldwide.com/can-ai-generated-content-be-copyrighted-heres-what-a-new-report-from-the-us-copyright-office-says1/

[14] Natalie Sherman, Sony, Warner, Universal sue over AI music copyright violations, BBC (Jun. 25, 2024), https://www.bbc.com/news/articles/ckrrr8yelzvo

[15] Chat GPT Is Eating the World, AI music generators Udio, Suno issue forceful fair use defense v. music labels, Chat GPT Is Eating the World (Aug. 1, 2024), https://chatgptiseatingtheworld.com/2024/08/01/ai-music-generators-udio-suno-issue-forceful-fair-use-defense-v-music-labels/