When I talk with clients about using AI in their creative process, the same question comes up again and again: Can I copyright this? The answer, like most things in law, is: it depends.
The U.S. Copyright Office has made its position crystal clear—only human creativity is protectable. That means if a machine spits out an image entirely on its own, it’s not going to qualify for copyright protection. But if you, as the human author, are making creative choices—arranging, editing, modifying, or combining AI outputs with your own expression—those parts of the work can be protected.
A recent blog from the Library of Congress put it nicely: the human element makes all the difference. In other words, what matters is not the sophistication of the tool, but the creativity of the person wielding it. Think of AI like a paintbrush. A paintbrush on its own doesn’t create art, but in the hands of an artist it becomes part of the creative process.
But there’s a catch. When you file a copyright registration, you have to be transparent. The Copyright Office now requires applicants to disclose if AI was involved and to disclaim the portions of the work that are purely machine-generated. Skip this step, and your registration is at risk.
That’s exactly what happened in the Allen v. Perlmutter case. The artist Jason Allen used Midjourney to create Théâtre D’opéra Spatial—a piece that drew headlines when it won a state fair art competition. Allen admitted he used hundreds of prompts but refused to disclaim the AI-generated portions when registering the work. The Copyright Office denied the application. His lawsuit challenging that decision is pending, but for now the rule of the road is simple: if AI contributed more than a trivial amount, you need to carve that out.
The Copyright Office has already granted over a thousand registrations where applicants disclosed their AI use and limited their claims to the human-authored parts. That’s the safe path. Trying to claim ownership over machine-generated material is a shortcut to rejection—or worse, litigation.
So what does this mean for artists, designers, and anyone experimenting with AI? Keep records of your creative process. Save your drafts, note your edits, and describe in plain English what you did versus what the software did. When it comes time to register, focus your claim on your own contributions—the selection, the arrangement, the human judgment.
At the end of the day, copyright law isn’t anti-AI. It just insists that creativity, not computation, is what deserves protection. The technology may change fast, but the principle remains the same: authorship belongs to people.
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