Thought Leaders: Copyright Protection of Works Generated by Artificial Intelligence

Companies are rapidly expanding their use of artificial intelligence (AI) to generate business images, digital and online content, videos, website, apps, and other software programs. Those works may not, however, be entitled to copyright protection. Copyright protection is important. When a copyright is registered with the U.S. Copyright Office, the owner of a copyright has the exclusive right to reproduce the work, make derivative works from the original work, distribute copies or recordings of the work, perform the work publicly, and display the work, and may enforce those rights in federal court. A copyright is a valuable property right that can be sold, transferred, licensed, rented, or leased to others. 

The Copyright Office is actively examining copyright issues raised by AI, including the scope of copyright protection for AI-generated works and the use of copyrighted materials in AI training. As part of these efforts, the Copyright Office has taken the position that copyright protection does not extend to purely AI-generated material or material where there is insufficient human control over the expressive elements. The U.S. Court of Appeals for the D.C. Circuit has affirmed the Copyright Office’s denial of an application for copyright registration for a work solely generated by AI. See Thaler v. Perlmutter, 130 F.4th 1039 (D.C. Cir. 2025). On March 2, 2026, the U.S. Supreme Court (“SCOTUS”) declined to hear that case, leaving the D.C. Circuit’s ruling intact.

Considering the D.C. Circuit’s holding in Thaler v. Perlmutter, individuals, organizations and businesses are on notice that literary, musical, pictorial, graphic, audio, audiovisual, and architectural works, including things like maps, technical drawings, and computer programs, generated solely by AI are not currently eligible for copyright protection given the Copyright Office’s human authorship policy and legal challenges to that policy are likely to fail.

However, the Copyright Office has not ruled out copyright protection for works created by humans with the assistance of AI. The Copyright Office has stated that: (1) 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; (2) copyright protects the original expression in a work created by a human author, even if the work also includes AI-generated material; and (3) whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analyzed on a case-by-case basis. Consequently, companies actively using AI need to highlight human authorship of a work when submitting a copyright registration application with the Copyright Office.

In addition, there may be other ways to protect AI-generated works. For example, if the work has not been made public and meets other criteria, it may constitute a trade secret.

If you have questions about patents, trademarks, copyrights, or trade secrets, contact BHGR’s Intellectual Property Group today.

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