Copyright law protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software and architecture. Copyright law rewards innovation and promotes the progress of the sciences by excluding facts, ideas, systems, procedures or methods of operation from copyrightability, although it may protect the way these things are expressed. The idea/expression dichotomy is one argument cited for the proposition that AI can train itself without infringing copyright, because AI is using facts and ideas, rather than expression, to teach itself.

Copyright protection is limited to the expressive elements of the work, while ideas or facts are not protected because they inherently do not contain creativity. Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 547 (1985). “The first person to find and report a particular fact has not created the fact but has merely discovered its existence.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 347 (1991). In Feist, for instance, the Supreme Court held that telephone numbers and addresses, even when organized alphabetically, fail to meet copyright’s originality requirement. Id. at 364. Compilations of facts, however, may be copyrighted if they are “selected, coordinated, or arranged” with originality. 17 USCS § 101. For instance, a list of wines arranged alphabetically would likely not receive copyright protection. However, a selection of wines arranged according to food pairings may have the required level of originality to qualify for copyright protection as a compilation.

Copyright law also treats certain historical interpretations as unprotectible facts because “the cause of knowledge is best served when history is the common property of all, and each generation remains free to draw upon the discoveries and insights of the past.” Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 974 (2d Cir 1980). For instance, a writer’s historical theory regarding the cause of the deadly Hindenburg crash was not eligible for protection. Id.

The widespread use of and advancements in generative AI require courts to apply existing legal frameworks to unprecedented situations. It may force reconsideration of the fundamental principles of intellectual property law, such as whether AI will redefine the distinction between facts and expression, particularly in terms of originality and creativity. While generative AI can produce more than mere facts —creating poems, stories and songs — this does not necessarily mean that its outputs have the requisite originality to qualify as expression. The challenge lies in the fact that expression has traditionally been viewed as an inherently human trait and copyright requires a human author.

The Copyright Office’s January 29, 2025 Release of Part 2 of its Artificial Intelligence Report affirmed that existing principles of copyright are flexible enough to apply to AI. Shira Perlmutter, Register of Copyrights and Director of the U.S. Copyright Office, said in her statement releasing the Report that the “conclusions turn on the centrality of human creativity to copyright… Where that creativity is expressed through the use of AI systems, it continues to enjoy protection. Extending protection to material whose expressive elements are determined by a machine, however, would undermine rather than further the constitutional goals of copyright.”

The day after the report was released, the Copyright Office granted its first copyright registration acknowledging that human-AI collaboration can exist and indicating there is a threshold where an AI artwork could be considered human-made. Since then the Copyright Office has registered a second work as “2-D artwork, images generated by artificial intelligence on the basis of collage, selection and arrangement” and a third registration of AI-generated video based on editing of AI-generated video and music. These new registrations confirm that the use of AI in creation does not automatically exclude a work from copyright protection.

Going forward, the Copyright Office and the courts will continue to evaluate the balance between human creativity and AI involvement when determining eligibility for protection. These issues will likely demand philosophical scrutiny as we redefine what it is to be human against the new backdrop of generative AI.

Lutzker & Lutzker will continue to provide updates on the application of intellectual property laws to this changing landscape. Authors, filmmakers and historians should especially take note that the copyrightability of historical interpretations is a highly fact-specific inquiry, so seeking legal counsel early in the process is important.