Generative AI – Intellectual property cases and policy tracker

In March 2023, the US Copyright Office published a Statement of Policy setting out its approach to registration of works containing material generated by AI.

The guidance states that only the human created parts of a generative AI work are protected by copyright. Accordingly, only where a human author arranges AI-generated material in a sufficiently creative way that ‘the resulting work as a whole constitutes an original work of authorship’ or modifies AI-generated content ‘to such a degree that the modifications meet the standard for copyright protection,’ will the human-authored aspects of such works be potentially protected by copyright. 

This statement follows a decision by the USCO on copyright registration for Zarya of the Dawn ('the Work'), an 18-page graphic novel featuring text alongside images created using the AI platform Midjourney. Originally, the USCO issued a copyright registration for the graphic novel before undertaking investigations which showed that the artist had used Midjourney to create the images. Following this investigation (which included viewing the artist’s social media), the USCO cancelled the original certificate and issued a new one covering only the text as well as the selection, coordination, and arrangement of the Work’s written and visual elements. In reaching this conclusion, the USCO deemed that the artist’s editing of some of the images was not sufficiently creative to be entitled to copyright as a derivative work.

As part of its study of the copyright law and policy issues raised by AI systems, in August 2023, the USCO sought written comments from stakeholders on a number of questions:

1. The use of copyrighted works to train AI models 
2. The copyrightability of material generated using AI systems
3. Potential liability for infringing works generated using AI systems
4. Issues related to copyright 

In July 2024, the USCO published Part 1 of its Report on Copyright and Artificial Intelligence, focusing on Digital Replicas (also called 'deepfakes'). Based on the input received, the USCO concluded that a new federal law is needed to deal with unauthorised digital replicas, as existing laws do not provide sufficient legal redress. This would cover all individuals, not just celebrities. However, whilst the paper also notes that creators have concerns over AI outputs that deliberately imitate an artist's style, it does not recommend including style in the coverage of the new legislation at this time.    

In January 2025, the USCO published Part 2 of its report, focused on copyrightability of outputs from using generative AI. The report concludes that outputs can only be protected by copyright where a human author has determined sufficient expressive elements. This can include situations where a human-authored work is perceptible in an output, or a human makes creative arrangements or modifications of the output. However, it will not apply in the case of mere provision of prompts. The report also confirms that the use of AI to assist in the process of creating/including AI-generated material in a larger human-generated work may be protected by copyright.

In May 2025, the USCO published a 'pre-publication' version of Part 3 of its Report, focusing on generative AI training. The report considers the steps involved in creating and deploying a generative AI system which involve using copyrighted works in ways that implicate the right of reproduction including: data collection and creation; training; RAG; and production of outputs.  In relation to fair use, the Office notes that the responses it had received to its Notice of Inquiry were 'sharply divided'.  Given that generative AI involves a spectrum of uses and impacts, the Office notes that it is not possible to prejudge litigation outcomes but does offer the following analysis:

• On the first factor, the Office expresses the view that training a generative AI foundation model on a large and diverse dataset will often be transformative but this will depend on the functionality of the model and how it is deployed. Meanwhile, the use of RAG is less likely to be transformative  where the purpose is to generate outputs that summarise/provide abridged versions of copyrighted works, as opposed to hyperlinks. The USCO forms the view that the knowing use of a dataset consisting of pirated or illegally accessed works should weigh against fair use without being determinative.
• On the fourth factor, the effect of the use upon the potential market for or value of the copyrighted work (the most important factor), the Office identifies that where a model can produce substantially similar outputs that directly substitute for works in the training data, it can lead to lost sales. Even where outputs are not substantially similar, they can dilute the market for similar works in the training data, including by generating material stylistically similar to those works. The assessment of market harm will also depend on the extent to which copyright works can be licensed for AI training. 

Introduced by Democratic Representative Adam Schiff, The Generative AI Copyright Disclosure Act would require a notice to be submitted to the Register of Copyrights prior to a new generative AI system being released, providing information on all copyrighted works used in building or altering the training dataset. It would also apply retroactively to existing genAI systems.

The Bill has attracted widespread support from across the creative community including from industry associations and Unions such as the Recording Industry Association of America, Copyright Clearance Center, Directors Guild of America, Authors Guild, National Association of Voice Actors, Concept Art Association, Professional Photographers of America, Screen Actors Guild-American Federation of Television and Radio Artists, Writers Guild of America West, Writers Guild of America East, American Society of Composers, Authors and Publishers, American Society for Collective Rights Licensing, International Alliance of Theatrical Stage Employees, Society of Composers and Lyricists, National Music Publishers Association, Recording Academy, Nashville Songwriters Association International, Songwriters of North America, Black Music Action Coalition, Music Artist Coalition, Human Artistry Campaign, and the American Association of Independent Music.