AI Copyrightablity Report

On January 29, 2025  The Copyright Office released Part Two of its AI Study Report which covers issues of copyrightability of AI-generated outputs. 

The Office reaffirms its position that the mere provision of prompts to an AI is not sufficient for human authorship in the generated output, but that outputs of generative AI can be protected by copyright only where a human has determined “sufficient expressive elements.” The Office notes that this can include situations where human-authored works are perceptible in an AI generated output or when a human makes creative arrangements or modifications of an output.

The Latest Report released a pivotal update of its AI Study Report, shedding light on one of the most pressing questions of our era: Can AI-generated works be protected by copyright?

What does this mean for Creators?

The Copyright Office acknowledges that AI-generated outputs may qualify for protection when human authorship is clearly visible. This can occur in two main scenarios:

1. Human Contributions in AI Outputs: If a human’s creative work, such as text, images, or other elements, is incorporated and perceptible in the AI-generated output, it could be eligible for copyright.

2. Creative Modifications: If a human takes an AI output and makes meaningful creative decisions to modify or arrange the work, this could also meet the standard for copyright protection.

Note: The case has not been made for changes to existing law to provide additional protection for AI-generated outputs.

What stands out in the report?

The ruling highlights the importance of human input in establishing copyright ownership, ensuring that the creative process remains at the core of authorship.

As stated by the Register of Copyrights and Director of the U.S. Copyright Office, Shira Perlmutter,  “After considering the extensive public comments and the current state of technological development, our conclusions turn on the centrality of human creativity to copyright, ... 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.”

As photographers and visual artists, the use of AI tools has become increasingly integrated into workflows from ideation to final outputs. However, this report serves as a reminder that the human touch is vital in creating work eligible for copyright protection. It’s not just about using AI but how you engage with it creatively.

APA's participation in the Report

In early 2023, the Copyright Office announced a broad initiative to explore the intersection of copyright and AI. Since then, the Office has issued registration guidance for works incorporating AI-generated content, hosted public listening sessions and webinars, met with experts and stakeholders, and published a notice of inquiry seeking input from the public, which served to inform these conclusions.

Advocacy leadership at APA, on behalf of our members and the photo community, provided input to both the US Copyright Office and the US Patent & Trademark Office. 

Read the testimony from APA’s Jeff Sedlik from the hearing on AI in 2024  https://apanational.org/resources/jeff-sedlik-testifies-in-ai-hearing-on-apas-behalf

APA has also participated in and supported responses and recommendation made by the Copyright Alliance, the Coalition of Visual Artists, Authors Coalition and the Human Artistry Campaign. 

How APA Supports Creatives

At APA, we remain committed to advocating for the rights of creators in this rapidly evolving landscape. As we explore the opportunities and challenges of AI, we encourage our members to stay informed and approach these tools with a clear understanding of their implications.

APA has hosted and will continue to host webinars with creators at the forefront of the new technology as well as experts in Copyrightabilty of the images created. 

APA members can gain access to exclusive recordings on the subject of AI
Learn more about Copyright for photographers

More about the Report
The USCO Report is being released in three Parts:
Part 1 was published on July 31, 2024, and recommended federal legislation to respond to the unauthorized distribution of digital replicas that realistically but falsely depict an individual. 
The final, forthcoming Part 3 will address the legal implications of training AI models on copyrighted works, including licensing considerations and the allocation of any potential liability.