02/02/2026
Copyright in Works Created with Generative AI
Do Copyrighted Works Require a Human Author?
The question of whether copyright protection may be afforded to AI outputs—such as images created by
Midjourney or texts created by ChatGPT—hinges largely on the legal concept of “authorship.” Article I,
Section 8, Clause 8 of the U.S. Constitution, often referred to as the Intellectual Property (IP) Clause,
empowers Congress to “secur[e] for limited Times to Authors . . . the exclusive Right to their . . .
Writings.” Based on this authority, the Copyright Act affords copyright protection to “original works of
authorship.
” While the Constitution and Copyright Act do not explicitly define who (or what) may be an
“author,” U.S. courts to date have not recognized copyright in works that lack a human author—including
works created autonomously by AI systems.
Before the proliferation of generative AI, U.S. courts did not extend copyright protection to various
nonhuman authors, holding that a monkey who took photos of himself lacked standing to sue under the
Copyright Act; that human authorship was required to copyright a book purportedly inspired by celestial
beings; and that a living garden could not be copyrighted. The U.S. Copyright Office has also long
maintained that copyrighted works must be “created by a human being” and therefore refused to register
Congressional Research Service
https://crsreports.congress.gov
LSB10922
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