The rule: human authorship

The Office's registration guidance, published March 16, 2023, at 88 Fed. Reg. 16190, says that "copyright can protect only material that is the product of human creativity." When an AI tool receives solely a prompt from a person and produces a complex work in response, the guidance treats the traditional elements of authorship as determined and executed by the technology, not the person. A human can still own what the human contributed: a creative selection or arrangement of AI-generated material, or modifications that meet the standard for copyright protection.

The Office's January 2025 report, Copyright and Artificial Intelligence, Part 2: Copyrightability, applied existing law and reached the same place. It concluded that, given current generally available technology, "prompts do not alone provide sufficient control," and that "The use of AI tools to assist rather than stand in for human creativity does not affect the availability of copyright protection for the output." It also concluded that the case has not been made for new copyright or sui generis protection for AI-generated content.

What goes on the application

  • Disclose the AI material. The guidance says applicants have a duty to disclose the inclusion of AI-generated content in a work submitted for registration and to give a brief explanation of the human author's contributions.
  • Exclude AI material that is more than de minimis. The guidance points to the Limitation of the Claim section, using the Other field under the Material Excluded heading.
  • Claim what the human did. The guidance gives sample wording for a claim in the selection, coordination, and arrangement of human-authored content and AI-generated content.
  • Fix older filings. For a pending application that left out AI material, the guidance says to contact the Office's Public Information Office. For an issued registration, it says to file a supplementary registration.

The guidance warns that applicants who do not update the public record after registering AI-generated material "risk losing the benefits of the registration." The system is in use: in May 12, 2026 testimony to the Senate Judiciary Subcommittee on Intellectual Property, the Register of Copyrights said the Office "has to date registered more than 7,000 claims that include AI-generated materials where those materials have been disclaimed in accordance with our registration guidance."

The courts: Thaler is final, and Allen is pending

In Thaler v. Perlmutter, 130 F.4th 1039 (D.C. Cir. 2025), decided March 18, 2025, the application listed an AI system, the Creativity Machine, as the sole author. The D.C. Circuit held that "the Copyright Act requires all work to be authored in the first instance by a human being" and that the Office appropriately denied the application. The Supreme Court denied certiorari on March 2, 2026, in No. 25-449.

Allen v. Perlmutter, No. 1:24-cv-02665 (D. Colo.), tests the harder case: a person who prompted an AI tool many times and then edited the result. On September 5, 2023, the Office's Review Board affirmed the refusal to register the image Théâtre D'opéra Spatial after the applicant declined to disclaim the material Midjourney generated. According to the decision, Allen described "input[ing] numerous revisions and text prompts at least 624 times" and said he then used Adobe Photoshop and Gigapixel AI. Cross-motions for summary judgment were fully briefed on February 27, 2026, and the public docket showed no ruling as of October 2, 2026.

Practical points

Because the application has to describe the human contribution, keep the working files that show it: drafts, edits, and the choices about what to keep and how to arrange it. If a work mixes human and AI material and you are not sure where the line falls, sort that out before you file, not after a refusal.