The U.S. Perspective: Human Authorship Required
In the United States, courts have consistently required human involvement to grant copyright protection. Without some level of human authorship, the work is not eligible for protection under the Copyright Act.
A key case on this point is Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018). In this unusual dispute, a 7-year-old macaque monkey named Naruto that lived in Indonesia found the unattended camera of a wildlife photographer and took a series of “monkey selfies” by pressing the camera shutter at will. Slater, the wildlife photographer, published the “selfies” in a book that claimed the copyright for himself and his company. Subsequently, PETA (People for the Ethical Treatment of Animals), et al. sued on behalf of Naruto asserting “next friend” status to satisfy the standing requirement. In a detailed discussion as to whether animals have standing to sue, the Court concluded that animals have standing under Article III of the U.S. Constitution. Id at 424,
But, in reviewing the standing requirement under the Copyright Statute, the Court concluded otherwise, stating:
The court in Cetacean did not rely on the fact that the statutes at issue in that case referred to “persons” or “individuals.” Id. Instead, the court crafted a simple rule of statutory interpretation: if an Act of Congress plainly states that animals have statutory standing, then animals have statutory standing. If the statute does not so plainly state, then animals do not have statutory standing. The Copyright Act does not expressly authorize animals to file copyright infringement suits under the statute. Therefore, based on this court’s precedent in Cetacean, Naruto lacks statutory standing to sue under the Copyright Act.
Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018), 425 (footnotes omitted).
Thus, although the monkey created the photographs, Naruto lacked standing under the Copyright Statute to sue for copyright infringement.
Guidance from the U.S. Copyright Office
Since the 2018 Naruto decision, machine-generated and AI-generated technologies have advanced significantly.
On March 16, 2023, the Copyright Office initiated a review of the copyright laws and AI generated works, and issued a policy statement giving guidance for applications that include AI generated work.² Recognizing the complexities of how artificial intelligence coalesces with the copyright laws, the 2023 Guidance stated:
These technologies, often described as “generative AI,” raise questions about whether the material they produce is protected by copyright, whether works consisting of both human authored and AI generated material may be registered, and what information should be provided to the Office by applicants seeking to register them. These are no longer hypothetical questions, as the Office is already receiving and examining applications for registration that claim copyright in AI-generated material.
“Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence”, U.S. Copyright Office, https://www.copyright.gov/ai/ai_policy_guidance.pdf , mimeo at pp. 1–2 (footnote omitted) (hereinafter 2023 Guidance).
In that statement, the U.S. Copyright Office made clear its position that human contribution is
necessary to assert a copyright claim:
In the Office’s view, it is well-established that copyright can protect only material that is the product of human creativity. Most fundamentally, the term “author,” which is used in both the Constitution and the Copyright Act, excludes non-humans. The Office’s registration policies and regulations reflect statutory and judicial guidance on this issue. Id., mimeo at p. 2:
Its reasoning is partially based on an early 1884 Supreme Court case, Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, in which the Supreme Court rejected an argument that a photograph is neither a writing nor the production of an author because the photograph was created by a camera. Photographs are covered because the photographs are “representative of original intellectual conception of the author.” 2023 Guidance at p.3.
But the 2023 Guidance further explains:
If a work’s traditional elements of authorship were produced by a machine, the work lackshuman authorship and the Office will not register it. For example, when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the “traditional elements of authorship” are determined and executed by the technology, not the human user. Based on the Office’s understanding of the generative AI technologies currently available, users do not exercise ultimate creative control over how such systems interpret prompts and generate material. Instead, these prompts function more like instructions to a commissioned artist. They identify what the prompter wishes to have depicted, but the machine determines how those instructions are implemented in its output.
Id. at p. 3 (footnotes omitted).
In offering guidance to copyright applicants, the 2023 Guidance states that the applicant has “a duty to disclose the inclusion of AI-generated content in a work submitted for registration and to provide a brief explanation of the human author’s contributions to the work.” Id. at p. 4.
In other words, applicants may claim copyright protection for their own contributions, but not that portion that was created by artificial intelligence.
Thaler v. Perlmutter: A Direct Challenge
In a more recent case in 2025, the issue came to the forefront in Thaler v. Perlmutter. Dr. Stephen Thaler created a generative AI system called the “Creativity Machine” which produced a picture that Dr. Thaler entitled “A Recent Entrance to Paradise.” He applied for copyright registration, naming the generative artificial intelligence “Creativity Machine” as the sole author.
The first sentence of the Court’s Opinion succinctly states the issue that the it was deciding:
This case presents a question made salient by recent advances in artificial intelligence: Can a non-human machine be an author under the Copyright Act of 1976?
Thaler v. Perlmutter, 130 F.4th 1039 (D.C. Cir. 2025)
In a comprehensive summary of the history and purpose of the Copyright Statute, the court reviewed several key provisions of the 1976 Copyright Act:
- Automatic ownership: Copyright vests in the author the moment a work is created, regardless of registration.
- Term of protection: For individual authors, protection lasts for life plus 70 years; for works made for hire, the term is 95 years from publication or 120 years from creation.
- Work-for-hire rules: Employers or commissioning parties can be considered the “author” if the work is made for hire, but this still requires human creation.
It also reviewed the Copyright Office longstanding rule requiring a human author even before the enactment of the 1976 Copyright Statute:
The Copyright Office first addressed whether machines could be authors in 1966, ten years before the Copyright Act of 1976 was passed. That year, the Register of Copyrights wrote in the Copyright Office’s annual report to Congress that, as “computer technology develops and becomes more sophisticated, difficult questions of authorship are emerging. * * * The crucial question appears to be whether the ‘work’ is basically one of human authorship, with the computer merely being an assisting instrument[.]” Copyright Office, Sixty-Eighth Annual Report of the Register of Copyrights at 5 (1966), https://perma.cc/QU7P-TY6N.
The Copyright Office formally adopted the human authorship requirement in 1973. That year, the Copyright Office updated its regulations to state explicitly that works must “owe their origin to a human agent[.]” Compendium First Edition § 2.8.3(I)(a)(1)(b). Id. at p. 1047.
And even after the Copyright Statute was enacted, the Court noted:
In short, at the time the Copyright Act was passed and for at least a decade before, computers were not considered to be capable of acting as authors, but instead served as “inert instrument[s]” controlled “directly or indirectly by a human” who could be an author.
Id. at p. 1048.
Notably, it is not that computer assistance is prohibited in authoring the work; it is that human authorship must be a part of the authoring process:
First, the human authorship requirement does not prohibit copyrighting work that was made by or with the assistance of artificial intelligence. The rule requires only that the author of that work be a human being, the person who created, operated, or used artificial intelligence, and not the machine itself. The Copyright Office, in fact, has allowed the registration of works made by human authors who use artificial intelligence.
Id. at p. 1049.
In short, authorship requires human input, a human being that “created, operated, or used artificial intelligence.”
The Gray Areas
But what about “prompts” that an author provides to the AI-generator? Do prompts constitute sufficient input, or authorship, to provide copyright protection for the output from the AI generator?
At least as of today, and the given level of today’s technology, the Copyright Office has determined that prompts alone are not sufficient human input to reach the threshold of authorship. Even “highly detailed prompts could contain the user’s desired expressive elements, [but] at present they do not control how the AI system processes them in generating the output.”³
AI systems can change or rewrite human prompts or inputs in a way that can “recast” the human contribution into something that is different in the final form, illustrating the lack of human control over the final form. In contrast, the implementation of prompts given to a human artist can be reviewed, modified or rejected during the implementation, illustrating a higher level of control.⁴
Questions arise whether a human intervention that rearranges the output from an AI-generator would constitute authorship. For example, if the AI-generator creates a number of images on its own, but the human arranges the images, or modifies the images in some way as to give rise to human input, would the final work be subject to copyright? Could the final output as a whole be subject to copyright, but not the AI-generated images themselves?
Questions like these are difficult because the final work could be a derivative work from the AI generated work.⁵ But if a human contributed text combined with AI-generated images, arguably the human text and possibly the entire final product can be protected. If there is any question or ambiguity, the Copyright Office will most likely pivot back to the position that only the human generated content can be protected by copyright.
Where Things Stand
As U.S. law currently stands, only human-created material qualifies for copyright. If AI assists in producing a work, only the human contributions are eligible for copyright protection. Applicants must disclose on their registration forms the AI-generated portions of the work being submitted
so that the Copyright Office can determine which portions of the submitted work are subject to copyright protection and those which are not.
As the technology behind AI evolves, it is possible copyright law will evolve or that Congress will pass legislation to address or clarify some of these issues. But the concept that copyright requires human input with some de minimis level of creativity seems deeply embedded in copyright law.
Contact Thomas Gross for more information: tgross@cogentlaw.com
¹ Feist Publications, Inc. v Rural Telephone Service Co., 499 U.S. 340, 345 (1991).
² Since its 2023 Guidance, the Copyright Office has issued a three part series of reports addressing a
number of complex issues raised by AI and its intersection with the copyright laws: Part 1: Digital
Replicas (July 31, 2024): https://www.copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-1-Digital-Replicas-Report.pdf
Part 2: Copyrightability (January 29, 2025): https://www.copyright.gov/ai/Copyright-and-ArtificialIntelligence-Part-2-Copyrightability-Report.pdf. Part 3: Generative AI Training (May 6, 2025):
https://www.copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-3-Generative-AI-Training-ReportPre-Publication-Version.pdf
³ Part 2: Copyrightability, mimeo at 18: https://www.copyright.gov/ai/Copyright-and-ArtificialIntelligence-Part-2-Copyrightability-Report.pdf
⁴ See discussion in Part 2: Copyrightability, mimeo at pp. 24-25. https://www.copyright.gov/ai/Copyrightand-Artificial-Intelligence-Part-2-Copyrightability-Report.pdf
⁵ Derivative works are works derived from material that is subject to a copyright, i.e., the original copyright covers
the derivative work. But can this argument be used to prevent copyright protection, i.e., the AI-generated work is
not covered by copyright, hence the derivative work is not covered?
Artificial intelligence is transforming how we produce text, images, videos, reports, and more. But this rapid innovation has created a number of pressing legal questions. In early 2023, the U.S. Copyright Office published a policy statement with guidance for registration applications for works that included AI-generated content. The threshold question that the Copyright Office
grappled with is: when AI generates content, who, if anyone, owns the copyright? Is it the person who prompted the AI, the programmers who built the AI algorithm, or does the content belong to no one at all?
The answer is evolving and depends on the circumstances surrounding the creation, especially given the significant advancements in AI-technology. The short answer is that only human contribution that amounts to authorship with some creativity, albeit even if extremely slight¹, is subject to copyright protection. The AI-generated content is not subject to copyright, but there are gray areas.
The U.S. Perspective: Human Authorship Required
In the United States, courts have consistently required human involvement to grant copyright protection. Without some level of human authorship, the work is not eligible for protection under the Copyright Act.
A key case on this point is Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018). In this unusual dispute, a 7-year-old macaque monkey named Naruto that lived in Indonesia found the unattended camera of a wildlife photographer and took a series of “monkey selfies” by pressing the camera shutter at will. Slater, the wildlife photographer, published the “selfies” in a book that claimed the copyright for himself and his company. Subsequently, PETA (People for the Ethical Treatment of Animals), et al. sued on behalf of Naruto asserting “next friend” status to satisfy the standing requirement. In a detailed discussion as to whether animals have standing to sue, the Court concluded that animals have standing under Article III of the U.S. Constitution. Id at 424,
But, in reviewing the standing requirement under the Copyright Statute, the Court concluded otherwise, stating:
The court in Cetacean did not rely on the fact that the statutes at issue in that case referred to “persons” or “individuals.” Id. Instead, the court crafted a simple rule of statutory interpretation: if an Act of Congress plainly states that animals have statutory standing, then animals have statutory standing. If the statute does not so plainly state, then animals do not have statutory standing. The Copyright Act does not expressly authorize animals to file copyright infringement suits under the statute. Therefore, based on this court’s precedent in Cetacean, Naruto lacks statutory standing to sue under the Copyright Act.
Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018), 425 (footnotes omitted). Thus, although the monkey created the photographs, Naruto lacked standing under the Copyright Statute to sue for copyright infringement.
Guidance from the U.S. Copyright Office
Since the 2018 Naruto decision, machine-generated and AI-generated technologies have advanced significantly.
On March 16, 2023, the Copyright Office initiated a review of the copyright laws and AI generated works, and issued a policy statement giving guidance for applications that include AI generated work.² Recognizing the complexities of how artificial intelligence coalesces with the copyright laws, the 2023 Guidance stated:
These technologies, often described as “generative AI,” raise questions about whether the material they produce is protected by copyright, whether works consisting of both human authored and AI generated material may be registered, and what information should be provided to the Office by applicants seeking to register them. These are no longer hypothetical questions, as the Office is already receiving and examining applications for registration that claim copyright in AI-generated material.
“Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence”, U.S. Copyright Office, https://www.copyright.gov/ai/ai_policy_guidance.pdf, mimeo at
- 1–2 (footnote omitted) (hereinafter 2023 Guidance).
In that statement, the U.S. Copyright Office made clear its position that human contribution is necessary to assert a copyright claim:
In the Office’s view, it is well-established that copyright can protect only material that is the product of human creativity. Most fundamentally, the term “author,” which is used in both the Constitution and the Copyright Act, excludes non-humans. The Office’s registration policies and regulations reflect statutory and judicial guidance on this issue. Id., mimeo at p. 2. Its reasoning is partially based on an early 1884 Supreme Court case, Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, in which the Supreme Court rejected an argument that a photograph is neither a writing nor the production of an author because the photograph was created by a camera. Photographs are covered because the photographs are “representative of original intellectual conception of the author.” 2023 Guidance at p. 3. But the 2023 Guidance further explains:
If a work’s traditional elements of authorship were produced by a machine, the work lackshuman authorship and the Office will not register it. For example, when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the “traditional elements of authorship” are determined and executed by the technology, not the human user. Based on the Office’s understanding of the generative AI technologies currently available, users do not exercise ultimate creative control over how such systems interpret prompts and generate material. Instead, these prompts function more like instructions to a commissioned artist. They identify what the prompter wishes to have depicted, but the machine determines how those instructions are implemented in its output.
Id. at p. 3 (footnotes omitted).
In offering guidance to copyright applicants, the 2023 Guidance states that the applicant has “a duty to disclose the inclusion of AI-generated content in a work submitted for registration and to provide a brief explanation of the human author’s contributions to the work.” Id. at p. 4. In other words, applicants may claim copyright protection for their own contributions, but not that portion that was created by artificial intelligence.
Thaler v. Perlmutter: A Direct Challenge
In a more recent case in 2025, the issue came to the forefront in Thaler v. Perlmutter. Dr. Stephen Thaler created a generative AI system called the “Creativity Machine” which produced a picture that Dr. Thaler entitled “A Recent Entrance to Paradise.” He applied for copyright registration, naming the generative artificial intelligence “Creativity Machine” as the sole author.
The first sentence of the Court’s Opinion succinctly states the issue that the it was deciding: This case presents a question made salient by recent advances in artificial intelligence: Can a non-human machine be an author under the Copyright Act of 1976?
Thaler v. Perlmutter, 130 F.4th 1039 (D.C. Cir. 2025)
In a comprehensive summary of the history and purpose of the Copyright Statute, the court reviewed several key provisions of the 1976 Copyright Act:
- Automatic ownership: Copyright vests in the author the moment a work is created, regardless of registration.
- Term of protection: For individual authors, protection lasts for life plus 70 years; for works made for hire, the term is 95 years from publication or 120 years from creation.
- Work-for-hire rules: Employers or commissioning parties can be considered the “author” if the work is made for hire, but this still requires human creation.
It also reviewed the Copyright Office longstanding rule requiring a human author even before the enactment of the 1976 Copyright Statute: The Copyright Office first addressed whether machines could be authors in 1966, ten years before the Copyright Act of 1976 was passed. That year, the Register of Copyrights wrote in the Copyright Office’s annual report to Congress that, as “computer technology develops and becomes more sophisticated, difficult questions of authorship are emerging. * * * The crucial question appears to be whether the ‘work’ is basically one of human authorship, with the computer merely being an assisting instrument[.]” Copyright Office, Sixty-Eighth Annual Report of the Register of Copyrights at 5 (1966), https://perma.cc/QU7P-TY6N.
The Copyright Office formally adopted the human authorship requirement in 1973. That year, the Copyright Office updated its regulations to state explicitly that works must “owe their origin to a human agent[.]” Compendium First Edition § 2.8.3(I)(a)(1)(b). Id. at p. 1047.
And even after the Copyright Statute was enacted, the Court noted:
In short, at the time the Copyright Act was passed and for at least a decade before, computers were not considered to be capable of acting as authors, but instead served as “inert instrument[s]” controlled “directly or indirectly by a human” who could be an author.
Id. at p. 1048.
Notably, it is not that computer assistance is prohibited in authoring the work; it is that human authorship must be a part of the authoring process:
First, the human authorship requirement does not prohibit copyrighting work that was made by or with the assistance of artificial intelligence. The rule requires only that the author of that work be a human being, the person who created, operated, or used artificial intelligence, and not the machine itself. The Copyright Office, in fact, has allowed the registration of works made by human authors who use artificial intelligence.
Id. at p. 1049.
In short, authorship requires human input, a human being that “created, operated, or used artificial intelligence.”
The Gray Areas
But what about “prompts” that an author provides to the AI-generator? Do prompts constitute sufficient input, or authorship, to provide copyright protection for the output from the AI generator?
At least as of today, and the given level of today’s technology, the Copyright Office has determined that prompts alone are not sufficient human input to reach the threshold of authorship. Even “highly detailed prompts could contain the user’s desired expressive elements, [but] at present they do not control how the AI system processes them in generating the output.”³
AI systems can change or rewrite human prompts or inputs in a way that can “recast” the human contribution into something that is different in the final form, illustrating the lack of human control over the final form. In contrast, the implementation of prompts given to a human artist can be reviewed, modified or rejected during the implementation, illustrating a higher level of control.⁴
Questions arise whether a human intervention that rearranges the output from an AI-generator would constitute authorship. For example, if the AI-generator creates a number of images on its own, but the human arranges the images, or modifies the images in some way as to give rise to human input, would the final work be subject to copyright? Could the final output as a whole be subject to copyright, but not the AI-generated images themselves?
Questions like these are difficult because the final work could be a derivative work from the AI generated work.⁵ But if a human contributed text combined with AI-generated images, arguably the human text and possibly the entire final product can be protected. If there is any question or ambiguity, the Copyright Office will most likely pivot back to the position that only the human generated content can be protected by copyright.
Where Things Stand
As U.S. law currently stands, only human-created material qualifies for copyright. If AI assists in producing a work, only the human contributions are eligible for copyright protection. Applicants must disclose on their registration forms the AI-generated portions of the work being submitted
so that the Copyright Office can determine which portions of the submitted work are subject to copyright protection and those which are not.
As the technology behind AI evolves, it is possible copyright law will evolve or that Congress will pass legislation to address or clarify some of these issues. But the concept that copyright requires human input with some de minimis level of creativity seems deeply embedded in copyright law.
Contact Thomas Gross for more information: tgross@cogentlaw.com
To evaluate how AI-generated content impacts copyright ownership, registration strategy, and risk exposure for your organization, schedule a consultation with Cogent Law.