The US Copyright Office's AI Position

In the AI Story

The position was articulated most clearly in the Office's 2023 Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence and the subsequent Zarya of the Dawn decision, which granted copyright to the human-authored text of a comic book but denied protection to AI-generated images within it.

The framework attempts to preserve the idea-expression doctrine by excluding AI output from the category of protectable expression. But the exclusion depends on drawing a clean line between human creative control and AI generation, and the line resists clean drawing. When a human writes a detailed prompt, evaluates multiple outputs, selects the best, and integrates it into a larger work, where does human creative control end? The Office's answer — substantial human contribution must be identifiable in the final work — translates the question into a different form without resolving it.

The institutional strain is not primarily a failure of reasoning but a consequence of the ideological framework within which the reasoning operates. The framework was designed for a world of individual authors producing original texts. The world now contains a technology that produces texts through a process that is collaborative, derivative, and distributed — a process that resembles the pre-Romantic modes of textual production that the genius ideology displaced. The framework cannot accommodate this process because the framework was designed to exclude it.

The Office's position also intersects with the training corpus question at the opposite end of the AI production chain. If AI-generated works are not protectable, then the economic structure around them is unclear; if the training corpus use is not compensable, the structure around input is equally unclear. The double uncertainty generates the broader institutional instability characteristic of the current moment.

Origin

The Office's position emerged across a sequence of administrative actions beginning in 2022 and continuing through 2024. The Zarya of the Dawn decision (February 2023) was the first high-profile application of the policy. The Registration Guidance (March 2023) formalized the framework. Subsequent registration refusals and policy statements have extended it.

The position draws on Supreme Court precedents — notably Burrow-Giles Lithographic Co. v. Sarony (1884), which located copyrightable authorship in the human creative contribution — but extends these precedents to technologies the precedents did not contemplate. The extension is defensible as a matter of doctrinal continuity; it is less clearly defensible as a matter of adequate policy response to new conditions.

Key Ideas

Human authorship as threshold. The Office treats identifiable human creative contribution as a threshold condition for registration. Works lacking this contribution are denied protection regardless of their other qualities.

Gradient obscured as line. The framework treats the boundary between human-created and AI-generated as a line, but practical cases reveal it as a gradient. The Office's case-by-case review is the institutional manifestation of the gradient's resistance to clean classification.

Disclosure as administrative solution. The Office requires applicants to disclose AI use in registered works, attempting to generate visibility into the production process. The disclosure regime is a practical response to the classification problem, not a solution to it.

Foreign divergence. Other jurisdictions have taken different positions. UK law historically recognized computer-generated works as a distinct protectable category. EU policy is under active development. The divergence suggests that the US position reflects a specific doctrinal choice rather than a necessary inference from the nature of AI.

Sustainability question. The position's sustainability depends on whether the human-AI gradient becomes more discrete (allowing cleaner sorting) or more continuous (making sorting increasingly arbitrary). Technological trajectory favors the latter, suggesting the position will face mounting pressure in the coming decade.

Debates & Critiques

Legal scholars are divided on whether the Office's position should be extended, replaced, or supplemented. Some argue for the introduction of new protection categories (e.g., a neighboring right for AI-assisted works, akin to the producer's right in sound recordings). Others argue for abandoning the human-authorship threshold in favor of investment-based protection. Still others defend the existing framework as essential to preserving the distinction between human creative work and automated generation. Woodmansee's analysis suggests the underlying problem is the Romantic framework itself, not any particular administrative choice within it.