U.S. Copyright Office Releases Part 2 of Artificial Intelligence Report, Clarifying Copyrightability of Generative AI Outputs

The U.S. Copyright Office has released Part 2 of its Report on the legal and policy issues related to copyright and artificial intelligence (AI). This part of the Report, issued on January 29, 2025, focuses on the copyrightability of outputs created using generative AI. Overall, the Copyright Office concludes that existing law is sufficient to resolve questions of AI usage in copyrighted works, and sufficient human contributions to AI-generated outputs that would constitute authorship will be analyzed on a case-by-case basis. The Office declined to support a separate copyright registration analysis for AI works, but provided new examples of how using AI as a tool could support sufficient authorship for copyrightability.

Previous AI Guidance

In early 2023, the Copyright Office initiated a broad exploration of the intersection of copyright and AI.

This new Report follows the first part of the Copyright Office’s AI guidance which focused on human authorship and disclosure of the use of AI in copyright applications. could result in copyright protection—as long as the AI-generated portions are disclaimed. After reviewing over 10,000 public comments from all 50 states and 67 countries, the Copyright Office issued Part 2.

New Copyright Office Guidance Clarifies Generative AI Copyrightability

Part 2 of the Report cites over 200 cases and public comments detailing updates to the Compendium of U.S. Copyright Office Practices, focused on the substantive copyrightability of AI-generated output. Shira Perlmutter, Register of Copyrights and Director of the U.S. Copyright Office, emphasized the importance of human creativity to copyright, stating, “Where that 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.” Based on the public comments and precedent, the Copyright Office makes the following recommendations:

• Questions of copyrightability and AI can be resolved pursuant to existing law, without the need for legislative change.
• Copyright protects the original expression in a work created by a human author, even if the work also includes AI-generated material.
• Whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analyzed on a case-by-case basis.
• Based on the functioning of current generally available technology, prompts do not alone provide sufficient control for the resulting work to be authored by a human.
• Human authors are entitled to copyright in their works of authorship that are perceptible in AI-generated outputs, as well as the creative selection, coordination, or arrangement of material in the outputs, or creative modifications of the outputs.
• The case has not been made for additional copyright or sui generis protection for AI-generated content.[1]

Highly anticipated in Part 2 of the Report, the Copyright Office takes the stance that prompt engineering for generative AI is not sufficiently creative to copyright on its own, nor does it create a copyright in the output text, image, video, or audio. The Office opines that “The gaps between prompts and resulting outputs demonstrate that the user lacks control over the conversion of their ideas into fixed expression, and the system is largely responsible for determining the expressive elements in the output.”[2]

The Office also attempted to clarify another muddy area of copyright protection using generative AI, which was the extent a generative AI program could be used as a tool for consenting creators when using their own human creations as the AI inputs—especially in relation to disabled creators—and if protection was warranted in that case. The Office opines that protection would be available in this instance: “We stress that to the extent these functionalities are used as tools to recast, transform, or adapt an author’s expression, copyright protection would be available for the resulting work”. They used the example of country artist Randy Travis, who can no longer sing due to a stroke, using a special-purpose AI vocal model based on a recording of his voice before his stroke as using AI as a tool rather than new content generation. Therefore, the Office would deem it copyrightable and register the work.[3]

Looking Ahead

The Copyright Office also has announced that a Part 3 of AI guidance will be forthcoming, which will address the legal implications of training AI models on copyrighted works, including licensing considerations and potential liability, and further explore the copyrightability of input material into generative AI.

We note that the Trump administration recently has issued a freeze on new rules and regulations through executive order, and it is not yet clear the extent to which this may impact the release and authority of guidance materials like this one. As regulations continue to be updated and administrative policies change, Crowell will continue to monitor and report on Copyright and AI developments, advising clients on copyright compliance for AI.