Can AI Be an Author? US Copyright Office Guidance

The Copyright Act does not define 'author,' but courts and the Copyright Office have long read it to mean a human being. The Office's Compendium says it will not register works produced by a machine or mechanical process without creative input from a human author. Thaler v. Perlmutter is the clearest test. Stephen Thaler sought to register 'A Recent Entrance to Paradise,' an image he said his system, the Creativity Machine, created autonomously, and he listed the machine as author. The Office refused. A federal district court upheld the refusal in August 2023, and the D.C. Circuit affirmed in March 2025, holding that the Act requires human authorship. Zarya of the Dawn addressed a more common situation. Kris Kashtanova registered a comic book, then the Office learned its images came from Midjourney. In February 2023 it issued a narrower registration covering the text and the selection and arrangement of text and images, but not the images themselves. The Office reasoned that Midjourney's output was not controlled closely enough by the user's prompts for the user to count as its author. In March 2023 the Office issued registration guidance requiring applicants to disclose AI-generated content that is more than minimal and to exclude it from their claim. Its January 2025 report on copyrightability concluded that prompts alone generally do not give enough control, while human expressive inputs, creative modifications, and selection and arrangement can be protected. It also concluded that no new legislation was needed. A common misconception is that using AI at all makes a work unprotectable. The real question is which parts reflect human creative choices.