Making things with AI

An author sketches a composition, asks an AI tool for visual possibilities, paints over part of an output, and adds her own typography. Another author types one prompt and uses the resulting image unchanged. Both say their covers were made with AI. Under U.S. copyright law they made very different things.

Copyright protects what a human contributed: your own work where it is perceptible in the output, your creative selection, coordination or arrangement of material, and your creative modifications of an output. It does not protect purely AI-generated material, and with today's tools, prompts alone do not give you enough control over the output to make you its author. Using AI as a tool that assists you does not cost you protection for your own work. 1 So the first author owns her painted changes, her typography and her arrangement of them with the image, if they are creative enough; the generated parts on their own stay unprotected. The second author has no copyright in the image. Ask what you contributed, not whether AI was involved.

Follow the material into the tool

Before you upload anything, sort it into three piles: your own work, work you have a license for, and everything else (someone else's text or images, a client's confidential files). The copyright owner holds the exclusive rights to copy the work and to make new versions of it, and to authorize others to do so, subject to limits such as fair use. 2 Uploading a file and asking the tool to rework it involves both. So check that your license covers this use, not just the project you got the file for. Understanding a license shows how to read one.

Then read the tool's terms and data settings: what the company keeps, who can see it, and whether it uses your uploads to train its models. A chat window that looks private is not a confidentiality agreement. The cover artist can experiment freely with her own drawing. A client's unreleased packaging design stays out of the tool unless the client has agreed and the tool's terms meet the client's confidentiality requirements.

Separate contractual promises from copyright

The tool's terms are a contract between you and the company. They can say you may use the output, or that the company gives you whatever rights it has in it. They cannot create copyright the law does not give: purely AI-generated material, and material where you lacked control over the expressive elements, is not protected no matter what the terms say. 1 They also cannot license someone else's work that turns up in the output; the rights in that work belong to its owner. 2

So "the service lets me use the image" and "I own copyright in every part of the image" are two different statements. Before you promise a client exclusive rights, check which parts you authored and promise rights only in those.

Keep a practical account of the human work

Keep the stages as you go: your sketches and drafts, the inputs you supplied, the outputs you chose, and your edits, with dates. You do not need every mouse movement; you need to show which parts are yours. A prompt history on its own does not show authorship, because prompts alone do not give you control over the output. 1 The same record tells a client exactly what it is receiving.

If you register the work in the U.S., follow the Copyright Office's AI guidance: 3

1. Log in to the Office's online registration system and use the Standard Application. 5 3
2. In the "Author Created" field, describe what the human author contributed. If you arranged your own material with AI material, claim "Selection, coordination, and arrangement of [your content] created by the author and [AI content] generated by artificial intelligence."
3. Exclude any AI-generated material that is more than de minimis: under "Limitation of the Claim", in the "Other" field under "Material Excluded", enter "[description of content] generated by artificial intelligence."
4. Do not list the AI tool or its company as an author or co-author.
5. If you are unsure how to describe it, state that the work contains AI-generated material. The Office will contact you when it reviews the claim.

Check the current fee on the Office's fee page before you file. 6 Your first U.S. copyright application walks through the rest of the form.

Already filed without disclosing the AI material? If the application is pending, contact the Copyright Office's Public Information Office so it adds a note to the record for the examiner. If the work is already registered, file a supplementary registration: describe your contribution in "Author Created", exclude the AI material in "Material Excluded/Other", and complete "New Material Added/Other". Fix it now: the Office can cancel a registration that omits this information, and a court can disregard a registration if you knowingly gave inaccurate information that would have led to refusal. 3 If you already need that registration in an infringement dispute, have a copyright litigation attorney review the correction before you file it.

Look at the result as a published work

Before you publish, check the output itself:

• Does it reproduce a passage, a recognizable character or other material someone else owns? Copying it and making new versions of it are that owner's rights. 2 Remixes and adaptations covers when you can build on existing work.
• Does it show another company's logo or suggest an endorsement you do not have? Take it out.
• Does it show a real person's face or voice? Read Faces and voices are not just another asset first.
• Is it accurate? AI tools do not always follow instructions, and text tools can state facts that are wrong. 3 Check every fact and detail a reader will rely on.

How a model was trained is a separate question from whether you can claim or publish its output. The Copyright Office deals with training in a separate part of its AI report (Part 3, Generative AI Training) from copyrightability (Part 2). 4 When your work is used to train AI covers that side.

Finish with a short description you can hand to a client or publisher: this is my drawing and text, these are the generated elements, these are the permissions I relied on, and this is the use I am offering.