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The Shortcomings of the Copyright Office’s Guidance for AI-Assisted Works
Introduction
AI-assisted artwork poses a simple question: When can an artist using AI tools copyright their work? Early this year, the Copyright Office addressed this issue and rejected the proposition that only prompting an AI model can create a copyrightable work: “The Office concludes that, given current generally available technology, prompts alone do not provide sufficient human control to make users of an AI system the authors of the output.” U.S. Copyright Office, Copyright and Artificial Intelligence, Part II: Copyrightability 18 (2025) [hereinafter Copyright Report]. But their analysis missed that “randomness” for a computer means something entirely different than we generally think, ultimately underselling the amount of control someone can have over the model’s output. If an artist can get a copyright (albeit a thin one) based solely on edits and modifications to an image, then someone using an AI tool should be able to do the same.
Copyright’s Creativity Requirement Is a Low Bar
To qualify for a copyright, “the requisite level of creativity is extremely low; even a slight amount will suffice.” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991). “[O]riginality requires independent creation plus a modicum of creativity.” Id. at 346.
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