By: Stephen Mahan
In January 2025, the U.S. Copyright Office released Part 2 of its “Copyright and Artificial Intelligence” report, focusing on the copyrightability of outputs generated by artificial intelligence (AI) systems.
While intended to provide clarity around how the Copyright Office will treat AI-generated works in terms of copyrightability, my view is that the guidance practically amounts to a concession that, put candidly, “It depends.”
What is clear, however, is that, given the sudden and dramatic proliferation of AI-generated content all over the Internet, a proactive and persistent approach to managing one’s IP portfolio requires greater rigor and vigilance than ever before. This goes both for the claimant looking to obtain protection for works even partially assisted by AI tools as well as intellectual- property-owning entities everywhere, whose owned ideas, patents and trademarks are now under a constant threat of being misused and manipulated through the use of AI — with scarce resources and time to fully monitor what is becoming something of a Wild Wild West.
A Brief Summary of the “Copyright and Artificial Intelligence Report, Part 2: Copyrightability”
The most recent issuance of what is expected to be a three-installment report reaffirms that copyright protection requires human authorship. In other words, works produced solely by AI without meaningful human involvement are not eligible for copyright.
However, if a human provides significant creative input—such as detailed prompts or modifications to the AI-generated content—the resulting work may qualify for protection. The Office concluded that existing copyright laws are adequate to address these issues, negating the need for new legislation.
In somewhat humorous fashion, the Copyright Office references the “monkey selfie” case to illustrate the necessity of human authorship for copyright protection. That case involved a photograph taken by a monkey using a photographer’s camera, leading to disputes over copyright ownership. The Office cited the example to emphasize that works created without human intervention, such as those generated entirely by animals or autonomous AI systems, are not eligible for copyright under current U.S. law.
The broad takeaway of Part 2, in my view is this: The courts will be addressing these matters on a “case-by-case basis.” So, while offering clarity around the necessity for human involvement to ensure copyrightability, there remains enough undetermined gray area, perhaps exposing existing copyrights, patents and trademarks to potential infringement.
Everyone’s Favorite Example: Taylor Swift
To illustrate my concern, let’s explore the world of NIL (or “Name, Image and Likeness”), one particular area of copyright law that concerns me relative to AI and this new guidance. The topic of NIL was examined in detail in Part 1 of the “Copyright and Artificial Intelligence” report issued by the U.S. Copyright Office in June 2024, focusing on Digital Replicas.
Most would assume that one cannot simply take a picture of Taylor Swift and slap it on a product to imply that the world’s biggest megastar has endorsed it.
But what if AI could be used to recreate a likeness of Swift’s image, bearing questionable but recognizable enough resemblance to Swift’s identity, altered it just enough to claim originality, and assigned it to a product category that Swift herself might never consider to endorse?
Might this person have standing to claim that AI had changed a likeness of Taylor Swift to not be Taylor Swift, so as to avoid infringement or a lost opportunity claim in an NIL case? And might that person claim that he or she provided enough human oversight and involvement to stake claim to copyright projection of this newly created likeness? If everything will be evaluated on a “case-by-case” basis, who’s to say?
AI to Protect Your Assets Against the Infringement of AI?
The upshot is this: Be vigilant, be thorough, be both proactive and quickly reactive. My advice remains that any individual or organization with intellectual property to protect must take a proactive and persistent approach to IP monitoring. In the modern AI-augmented reality, a thorough and consistent review of their IP portfolios is more critical than ever in history — which, perhaps ironically, can be greatly augmented by AI. Identify potential infringement early and as often as it occurs, and take the appropriate action as quickly as possible and while damage to your brand and business can be minimized.
For those seeking protection for works even partially assisted through the myriad artificial intelligence tools at our disposal these days, my advice is to first consult with experienced IP counsel before assuming that you’ve “done just enough” to make AI’s output your own, only to later find out the hard way (and the expensive way) that you had no standing in the first place.
Let’s Have Some Fun:
Underscoring the Importance of Human Oversight
Lastly, for all of its enormous promise, AI does continue to have its limitations. The importance of having expert human oversight cannot be overstated or undervalued.
Case in point: I thought it would be both interesting and illustrative to have AI provide a summary of January’s Copyright and Artificial Intelligence Report, Part 2. While AI was quick and mostly capable in returning a summary, what I received following a number of prompts was not entirely accurate, complete nor actionable in terms of legal counsel. While AI can perform a great number of tasks with speed and ease, it cannot be trusted to serve in the capacity of the expert.
And for fun, I wondered what it might sound like to have a “podcast” digest the entire report and provide a “radio-style” conversation as a means of learning about the Report. I uploaded the full document to a new and popular AI tool and, within mere moments, I was treated to this fascinating and remarkably genuine-sounding conversation.
While impressive in the making, it too lacks context, cohesion, and counsel. The two “hosts” of the “Deeper Dive” “podcast” (notice all of the quotes there) tended to drift off into other topics as the conversation wore on, somewhat muting the value of the information being presented.
And, N.B.: While I had a hand in prompting the creation of this “podcast,” I don’t know that I would stake any copyright claim to it!
To learn more about how this new guidance may or may not apply to your IP and inventions, contact Stephen Mahan at smahan@quinniplaw.com, or call him at (248) 380-9300, extension 119.