Lilian Doan Davis, Polsinelli PC, The National Law Review; Who Owns AI-Generated Content? Human Authorship Still Controls, and Documenting the Creation Process Is Critical
"Practical Steps Companies Should Consider Now
Businesses using generative AI should consider a few immediate steps:
- Document human creative input. Preserve drafts, edits, source files and records showing who selected, arranged, revised or transformed AI outputs.
- Do not assume prompting establishes ownership. Prompt logs may help show process, but they are not a substitute for evidence of human-authored expression.
- Be precise in registration strategy. Applicants should disclose AI-generated material where required, identify the human author’s contribution and claim only the human-authored portions.
- Revisit contracts and internal policies. Vendor agreements, employee policies and content-development protocols should not assume that all AI-assisted output is fully protectable or exclusively owned in the same way as traditionally authored material.
Bottom Line
The law remains grounded in conventional copyright principles. The Copyright Office’s recent guidance and the D.C. Circuit’s decision in Thaler point in the same direction: copyright protection still turns on human authorship, even when AI is part of the process.
For businesses, the practical implication is not simply that some AI-generated works may be unprotectable. It is that ownership, registration and enforcement may depend on whether the company can later show what a human author actually contributed. In that sense, AI governance is also evidence governance."
