Introduction
The evolving landscape of artificial intelligence (AI) and its intersection with intellectual property rights, particularly patents and copyrights, is a focal point for regulatory bodies. The Patent and Trademark Office (PTO) and the Copyright Office are actively addressing the implications of AI-assisted inventions and creations, emphasizing the necessity of human involvement in the inventive and creative processes to qualify for patent and copyright protection.
Description
The PTO is currently evaluating the issue of AI-assisted inventions and has reaffirmed its previous guidance [3], emphasizing that while such inventions are not inherently unpatentable [2] [3], the analysis of inventorship must prioritize human contributions to the inventive process. Human involvement is deemed crucial in the evaluation of AI-assisted inventions [2].
In early 2023 [6], the Copyright Office released a comprehensive report addressing the intersection between copyright and AI [6], focusing on human authorship [4] [5], creative control [5], and copyright protection [1] [2] [4] [5] [6] [7]. The Office issued registration guidance for works with AI-generated content [6], hosted public sessions [6], and gathered extensive input from a diverse range of stakeholders, including AI developers and artists [1]. It clarified that copyright protection requires human authorship [5], stating that purely AI-generated content without sufficient human input is not copyrightable [5]. However, works that utilize AI as an assistive tool can still be protected if they include significant human contributions [5].
The Office has addressed public comments regarding AI’s role in copyright [3], balancing the advantages of AI in aiding creators [3], particularly those with disabilities [2], against the potential negative impact on artists’ livelihoods [3]. It concluded that existing copyright principles can apply to generative AI [6], affirming that copyright protection for AI-generated outputs is possible only when a human author has contributed sufficient expressive elements [6]. This includes scenarios where human creativity is evident in the AI output or where a human modifies the output [6], but not merely providing prompts [6]. The guidance emphasizes that when AI enhances human-created works, the entire work may still be copyrightable [7], even if the AI-generated elements alone would not qualify [7].
The Office clarified that prompts alone do not provide enough human control over AI outputs to qualify for copyright protection [5], as the AI system primarily determines the expressive elements [5]. Human-authored inputs that are perceptible in AI outputs may be copyrightable [5], akin to derivative works [5]. Additionally, human creative selection [4] [5] [7], coordination [5], arrangement [1] [5], or modification of AI-generated content can qualify for copyright protection [5]. The nature of the prompts [4], whether simple or complex [4], does not grant authorship to the user [4], as the final output reflects the AI’s interpretation rather than the user’s creative input [4].
Furthermore, the Office determined that there is no need for changes to existing copyright law to enhance protection for AI-generated works [6], as current legal frameworks are deemed sufficiently adaptable to address emerging copyright issues related to AI [7]. However, concerns have been raised about the potential market saturation of AI-generated content if blanket copyright protection is extended [7], which could undermine the value of human-created works [7]. A case-by-case analysis will be necessary to assess whether human contributions meet the threshold for copyright protection [7], with courts expected to clarify the required level of human authorship in various contexts [7].
The Report from the Copyright Office is structured in three parts, with Part 1 recommending federal legislation against unauthorized digital replicas [6], and Part 3 set to address the legal implications of training AI models on copyrighted materials [6], including licensing and liability issues [6]. The Office plans to update its registration guidance and relevant sections of the Compendium of US Copyright Office Practices [6]. Creators and businesses are advised to meticulously document their creative processes [7], including human contributions and the use of AI tools [7], as this information may be crucial during copyright applications and in disputes over ownership or infringement [7]. Future discussions will focus on complex issues such as licensing [7], fair use [7], and liability allocation at the intersection of AI and copyright [7], aligning with international perspectives that also require significant human creative input for copyright eligibility [7].
To illustrate the difference between AI-generated works and human authorship [4], the report compares the AI generation process to Jackson Pollock’s painting technique [4], where Pollock maintained creative authority over key artistic choices despite not controlling every detail [4]. While AI-generated elements are uncopyrightable [4], artists may retain copyright protection when they modify their own works using AI [4], provided the original work remains recognizable [4]. Works that incorporate AI-generated content may be eligible for copyright if they involve significant human creative input [4]. For example [4], a comic book with AI-generated images could be protected if a human arranges the images and pairs them with original text [4]. Similarly [4], films featuring AI-generated special effects or background artwork can be copyrightable [4], even if the individual AI-generated elements are not [4] [7].
The report also discusses the copyrightability of AI-generated text prompts [4], generally viewing them as uncopyrightable instructions [4]. However, particularly creative prompts may contain expressive elements [4], though this does not extend copyright protection to the outputs they generate [4]. The critical issue remains the degree of human control over the creative process rather than the predictability of the outcome [4]. The Copyright Office highlights the importance of transparency in the copyright application process [5], reminding applicants to disclose the inclusion of AI-generated content in their submissions [5]. Overall, the guidance underscores the complex relationship between human creativity and AI assistance [5], urging creators and businesses to balance leveraging AI capabilities with maintaining sufficient human authorship to secure copyright protection [5].
Conclusion
The ongoing evaluation by the PTO and the Copyright Office underscores the critical role of human creativity in the realm of AI-assisted inventions and creations. By emphasizing human contributions [2], these regulatory bodies aim to preserve the integrity of intellectual property rights while adapting to technological advancements. The guidance provided serves as a framework for creators and businesses to navigate the complexities of AI and intellectual property, ensuring that human authorship remains at the forefront of patent and copyright protection.
References
[1] https://apnews.com/article/ai-copyright-office-artificial-intelligence-363f1c537eb86b624bf5e81bed70d459
[2] https://www.ipupdate.com/2025/02/assessing-inputs-determining-ais-role-in-us-intellectual-property-protections/
[3] https://www.jdsupra.com/legalnews/assessing-inputs-determining-ai-s-role-9262538/
[4] https://natlawreview.com/article/copyright-office-says-ai-generated-works-based-text-prompts-are-not-protected
[5] https://www.dykema.com/news-insights/the-future-of-creativity-us-copyright-office-clarifies-copyrightability-of-ai-generated-works.html
[6] https://www.copyright.gov/newsnet/2025/1060.html
[7] https://natlawreview.com/article/copyright-offices-latest-guidance-ai-and-copyrightability
