Copyright Office rules require human authorship for AI-assisted designs

Designers, print studios and brands are using generative AI tools to produce sketches, textile patterns and product images. Whether the result can be owned under U.S. copyright depends on how much a person contributed to it.

The Copyright Office has set out its position in guidance and reports, and federal courts have ruled on the question of authorship. This explainer covers the current rules, the dates they took effect and the points that remain unsettled, based on Copyright Office documents, a Federal Register notice, a law firm summary of the court record and the Supreme Court’s docket.

Copyright protection depends on human authorship

The Copyright Office registers original works of authorship. In the case that has shaped the current rule, an applicant asked the Office to register an image that an AI system had generated. The applicant listed the machine as the author and no person. The Office refused registration, and its review board affirmed that refusal on reconsideration.

The district court granted summary judgment to the government. According to a Jones Day summary of the case, the D.C. Circuit affirmed. The appeals court described human authorship as “a bedrock requirement of copyright,” and the case is known as Thaler v. Perlmutter.

The rule covers the author of record. A registration application cannot name an AI tool, or the company that made it, as an author or co-author.

Registration disclosure date
The Copyright Office’s AI registration guidance took effect on March 16, 2023. Applicants whose work includes more than de minimis AI-generated material must disclose it and explain the human contribution.

The 2023 registration rule requires disclosure

The Copyright Office issued its registration guidance on AI-generated material as a Federal Register statement of policy. The policy took effect on March 16, 2023.

Under the policy, an applicant whose work includes AI-generated material must disclose that material and briefly explain what the human author contributed. AI-generated content that is more than de minimis should be excluded from the application. The Office does not require applicants to disclaim de minimis uses of preexisting works, such as brief quotes or short phrases.

The application process has specific fields. The human authorship is described in the “Author Created” field. The AI material is listed under “Material Excluded” in the Limitation of the Claim section. Applicants may add detail in the “Note to Copyright Office” field. If an applicant is unsure how to describe the work, the policy says a general statement that the work contains AI-generated material is acceptable, and the Office will follow up.

The policy also gives an example. The Office found that a graphic novel combining human-written text with images generated in Midjourney was copyrightable as a whole. The individual AI-generated images, however, could not be protected on their own.

What the January 2025 report says about prompts and edits

On January 29, 2025, the Copyright Office released Part 2 of its AI report. The report addresses whether the outputs of generative AI can be protected.

The report says protection is available only where a person has contributed enough creative expression. Typing instructions into an AI system does not make the person the author of the output. Creative selection, arrangement or changes that a person makes to an AI output can qualify for protection.

The report also covers cases where a human-authored work is recognizable within an AI output. It says AI assistance in creating a work does not, by itself, disqualify that work from copyright. The same is true when AI-generated material is included in a larger human-created work.

The Office said existing law can handle AI, in the same way it handled earlier technologies. It did not recommend new legislation to protect AI outputs.

A prompt alone does not make the person who typed it the author of the output.

Thaler v. Perlmutter and the March 2026 denial

Stephen Thaler petitioned the Supreme Court to review the D.C. Circuit’s decision. The Court’s docket for the case, No. 25-449, shows the petition was denied on March 2, 2026. The docket entry lists the case name and the denial date, but the question presented is not shown on that page.

The denial leaves the appeals court ruling in place. Speakers in the Jones Day summary said the case did not produce a circuit split, and that Congress has not amended the Copyright Act on this point. They also noted that the Act does not use the phrase “human author” directly, while most readings treat it as implying that requirement.

The same speakers described the Office’s current guidance as focusing on the nature and extent of a person’s interaction with the AI tool. In their account, a very detailed prompt alone is not copyrightable. A sketch made by a person and enhanced with AI may be eligible, provided the AI-generated contributions are disclaimed. The Jones Day page does not give dates for these examples, and they are the speakers’ summary rather than the Office’s own text.

Questions the sources leave open

The main open question is how much AI assistance a human author can use before a work stops being protected. The Jones Day speakers said no bright-line test exists, and no percentage of human contribution has been set.

Some amicus briefs in the Thaler litigation argued that the issue is constitutional and that only the Supreme Court can resolve it. The denial of review did not resolve that argument, and the sources reviewed do not say whether the question will return to the courts.

The sources also do not single out apparel or textile designs. The registration guidance and the 2025 report apply to all categories of work. For a design team, that means the questions in the guidance, such as what the human author selected, arranged or changed, apply to a print or pattern in the same way they apply to a graphic novel.

Readers who need a registration decision for a specific design should check the Copyright Office’s current guidance and the application fields before filing.

Photo: Alvesgaspar · CC BY-SA 4.0 · via Wikimedia Commons