The United States Copyright Office (USCO) issued formal guidance in March 2023 regarding the registration of works that contain material generated by artificial intelligence. The guidance, titled "Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence," was published in the Federal Register on March 16, 2023. It addresses the growing use of generative artificial intelligence systems, such as large language models, and clarifies the Office's position on the copyrightability of AI-generated content under existing law.
The guidance reaffirms the fundamental principle that copyright protection extends only to works of human authorship. It states that when an AI tool generates material without sufficient human creative input, that material is not protected by copyright. However, if a human author selects, arranges, or modifies AI-generated output in a sufficiently creative way, the resulting work may be eligible for protection, but only to the extent of the human-authored contributions. The Office emphasized that each application is evaluated on a case-by-case basis.
Background and Legal Context
The USCO is a part of the Library of Congress and operates under the legislative branch of the U.S. government. Its primary functions include registering copyright claims, recording ownership documents, and advising Congress on copyright policy. The Office is headed by the Register of Copyrights, a position that has been subject to controversy since 2025, but as of the guidance, Shira Perlmutter served as the 14th Register, having assumed office on October 26, 2020.
The legal foundation for copyright in the United States derives from the Constitution, which empowers Congress to promote the progress of science and the useful arts. The first federal copyright law, the Copyright Act of 1790, covered only books, maps, and charts, and claims were initially recorded by district court clerks. Over time, the system was centralized in the Library of Congress in 1870, and the Copyright Office became a separate department in 1897. The Copyright Act of 1976, effective January 1, 1978, remains the core of current copyright law, making registration largely optional but a prerequisite for filing infringement lawsuits.
The 2023 guidance emerged against a backdrop of rapid advances in AI technologies, particularly the release of powerful large language models and transformer-based architectures. These systems can generate text, images, and other content that closely mimics human output, raising novel questions about authorship and ownership.
Key Provisions of the Guidance
The guidance clarifies several important points. First, it distinguishes between works that are entirely AI-generated and those that incorporate AI-generated elements. For entirely AI-generated works, the Office will not register them because they lack the human authorship required by law. For works with AI-generated material, the applicant must disclose the use of AI and describe the human contributions.
The Office provided examples to illustrate its approach. If a user provides a prompt to an AI system and the system generates a textual or visual output, that output is not copyrightable. However, if the user then edits, rearranges, or otherwise modifies the output in a creative manner, the modifications may be protected. Similarly, if a user creates a work that combines AI-generated elements with original human-authored content, the overall work may be registered, but the AI-generated portions will be excluded from protection.
The guidance also addresses the issue of "de minimis" use. If the AI-generated material is only a small, incidental part of a larger work, the Office may not require disclosure. However, if the AI-generated content is substantial, the applicant must clearly identify it.
Implications for AI Developers and Users
The guidance has significant implications for developers of generative AI systems and for users who employ these tools in creative fields. For developers, the guidance clarifies that the AI system itself cannot be considered an author, even if the system is designed to produce creative outputs. This aligns with the Office's long-standing position that only natural persons can be authors.
For users, the guidance means that simply prompting an AI to generate content does not confer copyright protection. To obtain protection, users must demonstrate meaningful human creative input. This could include selecting prompts, curating outputs, making creative edits, or integrating AI-generated material into a larger original work.
The guidance has also sparked debate among legal scholars and practitioners. Some argue that it is too restrictive and fails to account for the creative choices involved in prompt engineering. Others contend that it is consistent with existing copyright principles and necessary to prevent a flood of AI-generated works into the public domain.
Comparison with Other Jurisdictions
The USCO's guidance is not the only response to the challenge of AI-generated content. Other countries have taken different approaches. For example, the European Union has debated the concept of "works produced by AI" and whether to grant rights to the AI's owner or user. The United Kingdom's copyright law, which protects "computer-generated works" without a human author, is often cited as a contrasting model. In that system, the author is deemed to be the person who made the necessary arrangements for the creation of the work.
The USCO's position is more conservative, requiring human authorship in all cases. This has led to calls for legislative changes to address the unique characteristics of AI-generated works, but as of the guidance, no such changes have been enacted.
The Role of the Copyright Office
The Copyright Office's primary mission is to administer the copyright system effectively. It examines applications, records documents, and provides public information services. The Office also advises Congress on copyright policy and has issued several reports on AI-related issues. The 2023 guidance is part of a broader effort to update policies in response to technological changes.
The Office's archives, including the Copyright Card Catalog with nearly 45 million cards, document the history of copyright registration in the United States. Since 1978, records have been maintained in an online database with over 16 million entries. The Office is located in the James Madison Memorial Building in Washington, D.C., and is open to the public by appointment.
Reactions and Future Outlook
The guidance received mixed reactions. Some creators and AI companies welcomed the clarity it provided, while others expressed concern that it could stifle innovation. In the months following the guidance, the Copyright Office continued to receive inquiries and requests for clarification. It also launched a public consultation on AI and copyright, which included hearings and written comments from stakeholders.
As of 2025, the Office has not issued further formal guidance, but it has been involved in several high-profile cases involving AI-generated works. Courts have generally upheld the Office's position, though some cases are still pending. The future of copyright law in the age of AI remains uncertain, and the 2023 guidance is likely to be a foundational document for years to come.
Conclusion
The US Copyright Office's March 2023 guidance represents a critical step in defining the boundaries of copyright protection for AI-generated content. By emphasizing human authorship, the Office has set a clear standard that balances the interests of creators, AI developers, and the public. While the guidance is not without controversy, it provides a framework that is likely to influence policy debates both in the United States and abroad. As AI technologies continue to evolve, the Office will need to adapt its policies to ensure that copyright law remains relevant and effective.