Authors Guild Submits Guidance for National AI Action Plan to Protect Writers' Rights
March 19, 2025
U.S. Copyright Office Releases Part 2 of AI Report: What Authors Should Know
February 6, 2025
On January 29, 2024, the U.S. Copyright Office released the much-anticipated second part of its ongoing study on copyright and AI, which began last year with a notice of inquiry that garnered over 10,000 public comments, including those from the Authors Guild (PDF).
Part one of the report was released in July 2024 and concerned AI generated “digital replicas”—false audiovisual depictions of real people. The second part expands the scope of the office’s inquiry into a crucial issue: copyrightability. A third, still to come, will cover copyright issues around the training of AI, including fair use and licensing.
We are pleased that the new report confirms the Authors Guild’s positions and analysis set forth in our comments, reply comments, and oral testimony at Copyright Office roundtables—and it cites the Guild more than twenty times. We thank the Copyright Office for its diligent work in compiling the report.
Copyrightability
A work of authorship is copyrightable under U.S. law (PDF) if it is: 1) original, in that it was the authors’ own conception and possesses at least a minimal degree of creativity; 2) fixed in a tangible medium of expression, meaning it is recorded or written down in some form that allows it to be perceived, reproduced, or communicated over time; and 3) the product of human authorship.
Consistent with case law that establishes human authorship as a sine qua non for copyright protection and the Copyright Office’s prior registration guidance, the report finds that AI-generated material is not copyrightable. This applies to wholly AI-generated content as well as AI-generated elements incorporated in an otherwise human-authored work. On the flip side, a work that is partly human authored and partly AI generated may be copyrightable as a whole as long as there is sufficient human authorship. The elements that are AI generated are simply filtered out, like any other public domain material, in an infringement analysis.
This means that if someone takes only AI-generated elements from a work, it is not an infringement, but if they copy the work as a whole or just the human-authored portions, it generally would be. As in any infringement analysis, the court will compare the original work and the allegedly infringing one side-by-side, after filtering out any non-copyrightable matter, to determine whether they are substantially similar.
For instance, if you wrote a 20-line poem and added two lines that were AI-generated, you would have to disclose in an application for copyright registration (made under a sworn statement) that there was some AI-generated text in the poem, and those lines would not be covered by the copyright. This means that if someone used those two lines without your permission, you would have no recourse. But if they reprinted the entire poem, the court would compare your poem minus the two AI-generated lines to the unauthorized copy, and it would find infringement (barring fair use). It is the same analysis as would apply if you included any third party-owned or other public domain material, such as letters or epigraphs, in your work; you cannot assert or enforce copyright in those elements.
The report concludes that giving AI outputs even a new sui generis type of protection would fail to advance the purpose of copyright, which is to incentivize human creators. Echoing the Guild’s remarks, the Copyright Office explains that giving AI outputs copyright protection may undermine the incentives for human creation.
What Authors Should Know
The report’s discussion of copyrightability has several implications for authors.
First of all, authors should be aware that if they incorporate AI-generated text in their work, that text will not be protected by copyright, and hence anyone could use it. When submitting works for copyright registration, authors should be mindful to “disclaim” any AI-generated portions, as they would any other material they did not create (such as illustrations and other third-party material). Traditionally published authors should disclose to their publishers if their works incorporate AI-generated text so their publishers can disclaim that text from their registration applications.
Authors should also bear in mind that the use of AI to generate outlines, research, or brainstorm does not have to be disclosed or disclaimed. Authors can use AI for these purposes without impacting the copyrightability of the work.
Moreover, if there is some AI-generated text in an otherwise human-authored work, the lack of copyright protection for the AI portions does not impact the copyright in the work as a whole or in any human-authored portions or elements. For example, if two of ten chapters of a book were AI generated, those chapters will not be protected, but the book as a whole can be copyrighted—both because the other eight chapters are copyrightable and because the author compiled the ten chapters into a single work (and so has a compilation copyright). Similarly, if a work is a compilation of AI-generated text, the work will be eligible for copyright as a compilation—meaning that the human author’s selection, modification, and organization of the AI generated material is copyrightable, but the AI generated text itself will not be protected.
In some cases, an author may use their own work as a prompt in an AI system (for example to change the point of view or setting of a story). Again, this does not render the original work ineligible of copyright; any aspect of the human expression input into the AI that passes through and appears in the output is copyrightable, though expression added by the AI would not be.
For instance, if you wrote a story then put it into a chatbot and asked it to change two of the characters, you would still own the copyright in the original story and could prevent anyone from using all of the elements that carried over in the AI-revised story.
Takeaways
The Copyright Office’s report affirms the Authors Guild’s positions on the following:
1. AI-generated material is not and should not be protected by copyright or a new sui generis form of protection.
2. Prompting alone, even using complex and multiple prompts, will not provide copyright protection in the output. At least for now, there is no way to sufficiently control what the output produces by prompting. In explaining this point, the Copyright Office adopted the Authors Guild’s analogy that using consecutive prompting to find the result you want is like spinning a roulette wheel until you get the number you want. All that spinning is just labor and getting to the desired outcome was just chance. The U.S. copyright law is clear that there is no copyright in labor or chance.
3. Our existing law has plenty of precedent for dealing with copyrightability and infringement of works where some portions are not protectable or not owned by the copyright owner of the work. The courts are already pretty good at filtering out unprotectable elements, such as third party owned material, ideas, facts, common elements, and tropes. AI-generated elements are just one more element to add to the checklist.
As such, courts should not have a problem with the legal question of what is copyrightable and how they should filter out AI-generated material when comparing works in an infringement analysis. The law is there. Establishing as a factual matter whether any particular element of a work is AI generated is a different matter, however, and may present obstacles in infringement cases, making discovery even more laborious than it already is.
For instance, an author may not remember which sentences, paragraphs, or elements were AI generated, or they may have died and not kept records. For now, there is no good human or mechanical way to distinguish human-authored from AI -generated text on a word-by-word or sentence-by-sentence basis. AI-generated stories give themselves away by their style, their odd narratives and sometimes their nonsense, but it is not so obvious if a sentence here or there is AI generated.
We look forward to reviewing the next report on AI training and will share it and other developments in AI in our newsletter and on our website.
If you are an Authors Guild member and have questions about the registration form or process, please reach out to us through our legal help request form. The Copyright Office has very good instructions on its site to walk you through the online application to register a copyright, with screen shots to help you through the process, including how to disclose any non-copyrightable material.