US Copyright Law vs. AI

There are three areas of U.S. law in which prediction of outcomes of litigation is difficult to impossible. The three areas include tax law, immigration law, and copyright law. The few contradictory statutory provisions in each of these three areas change on almost a daily basis. Most U.S. citizens have a vague, if not inaccurate, understanding of U.S. copyright law. For individuals and not major corporations, the rule that all copyright claims must be filed in the federal courts makes pursuing a claim of breach of copyright almost unavailable to the average citizen. 

Let me explain this in simpler terms. Basic copyright law, as it is expressed in the statutory base, is easily obtained from the U.S. Copyright Office, which is part of the Library of Congress. See https://www.copyright.gov/ You can see the entire statutory law from this website by selecting a menu item to look at the law itself. See https://www.copyright.gov/title17/ To even begin to understand copyright law, you would need to study and understand all the provisions of Title 17 of the United States Code. However, the rest of the bulk of the U.S. copyright law is not readily available. Most of what is considered to be "the law" in the United States is court-made law by judges' decisions in specific lawsuits. To resolve any particular questions regarding copyright coverage and application, you would have to do extensive research on all U.S. court cases decided since the inception of copyright around the time of the U.S. Civil War. 

If you want to get started with the existing court decisions, you can do a quick search on it, a program from Google called scholar.google.com. https://scholar.google.com/schhp?hl=en&as_sdt=3,45. Do a general search on copyright law, and you will find a response that shows about 180,000 cases. Major copyright cases can cost the litigants tens of thousands, if not hundreds of thousands, or even millions of dollars. 

What about the current status of copyright and AI? Here is the report from the copyright office in a part of the website called "Copyright and Artificial Intelligence."  See https://www.copyright.gov/ai/. Here is a quote from the website about the current status of AI and Copyright law.

Since launching an initiative in early 2023, the Copyright Office has been examining the copyright law and policy issues raised by artificial intelligence (AI), including the scope of copyright in AI-generated works and the use of copyrighted materials in AI training. After hosting public listening sessions and webinars, the Office published a notice of inquiry in the Federal Register in August 2023, which received over 10,000 comments by December 2023.

If you know anything about copyright or AI, you will realize that the U.S. government's efforts to address the issues cannot possibly keep up with the changes occurring on an almost weekly basis. Here is a screenshot of the Copyright Office's most recent announcements.

Here is the Copy Office's summary of the most recent release "Issue No. 1060 - January 29, 2025."

Today, the U.S. Copyright Office is releasing Part 2 of its Report on the legal and policy issues related to copyright and artificial intelligence (AI). This Part of the Report addresses the copyrightability of outputs created using generative AI. The Office affirms that existing principles of copyright law are flexible enough to apply to this new technology, as they have applied to technological innovations in the past. It concludes that the outputs of generative AI can be protected by copyright only where a human author has determined sufficient expressive elements. This can include situations where a human-authored work is perceptible in an AI output, or a human makes creative arrangements or modifications of the output, but not the mere provision of prompts. The Office confirms that the use of AI to assist in the process of creation or the inclusion of AI-generated material in a larger human-generated work does not bar copyrightability. It also finds that the case has not been made for changes to existing law to provide additional protection for AI-generated outputs.

Just ask yourself, "What has changed in AI from January of 2025?" 

As an experienced trial attorney, if you ask me about a specific AI versus copyright issue, at the time of this post, I could not answer the question without spending a considerable amount of time on research. Even if I did the research, my conclusion would be my personal opinion. My review would have to include all the recent decisions made about copyright law. For example Thaler v. Perlmutter (D.C. Cir. 2025; U.S. Supreme Court, cert. denied March 2, 2026) See https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/25-449.html

What more can I say?