AI-Generated Content and Copyright: What California Businesses Can Protect and Use

Last updated: November 2026

Content generated entirely by an AI tool, with no human creative contribution, cannot be copyrighted. Copyright protects original works of authorship, and courts have held that the author must be human. (17 U.S.C. § 102(a); Thaler v. Perlmutter (D.C. Cir. 2025) 130 F.4th 1039, 1041.) Content a person creates with AI assistance can be protected to the extent of the human contribution. Kolmogorov Law, P.C. advises and litigates for Orange County, Los Angeles, and other California businesses on both the ownership and the infringement side of AI-generated content.

Call (909) 235-6116 or contact us online if AI-generated material is part of a dispute over your marketing, product, or code.

The human authorship rule for AI-generated content

The Copyright Act protects original works of authorship fixed in a tangible medium. (17 U.S.C. § 102(a).) Originality requires independent creation and a minimal degree of creativity. (Feist Publications, Inc. v. Rural Telephone Service Co. (1991) 499 U.S. 340, 345.) The statute does not define "author."

That changed with an application that listed a computer system as the sole author of an image. The Copyright Office refused registration. The D.C. Circuit affirmed, holding that the Copyright Act requires all eligible work to be authored in the first instance by a human being, so a machine cannot be the recognized author. (Thaler, 130 F.4th at p. 1041.) The court was careful about what it did not decide. It said the human authorship requirement does not prohibit copyrighting work made by or with the assistance of artificial intelligence; the rule requires only that the author be the person who created, operated, or used the tool, not the machine. (Thaler, 130 F.4th at p. 1049.) How much human contribution is enough was left for other cases.

What the Copyright Office will register

The Office's registration guidance, issued in 2023 and cited by the court, takes a case-by-case approach: whether a work made with AI is registrable depends on how the tool operates and how it was used to create the final work. (Thaler, 130 F.4th at p. 1049.) In practice the Office has registered works where a human selected, arranged, or modified AI output in a creative way, while refusing protection for the AI-generated portions themselves. It has refused registration for images produced from text prompts alone, on the theory that the prompt does not control the expressive elements of the output.

Applicants are expected to disclose AI-generated material in the application and to exclude it from the claim. A business that registers a marketing campaign, a product manual, or a website built with AI tools should expect to claim the human-authored text, the selection and arrangement, and the human edits, and to disclaim the rest.

What this means for a business

A logo, a product description, or an advertising image produced by typing a prompt and accepting the output is, under current law and Copyright Office practice, likely unprotected. A competitor may copy it. That is a real commercial cost, and it argues for keeping a human in the creative chain for anything the business wants to own. Keep drafts, prompt histories, and records of the human edits; they are the evidence of authorship.

Where a human wrote the brief, directed the iterations, and revised the output, the business has a protectable work, at least as to the human contribution. Ownership then follows the usual rules. An employee's work belongs to the employer; a contractor's belongs to the contractor unless assigned in a signed writing. (17 U.S.C. §§ 201(b), 204(a).) Our page on copyright ownership and contractors covers those rules, and our AI vendor contracts guide, linked below, covers what the tool's own terms say about output ownership.

The AI copyright infringement side

Two questions arise. The first is whether training a model on copyrighted works infringes. Courts have begun deciding that question, and the early decisions have turned on fair use, on how the training data was obtained, and on whether the outputs substitute for the originals. The Copyright Office has reported that some training uses are likely fair and others likely not. That area is unsettled, and our fair use page explains the four factors that decide it.

The second question is the one that reaches business owners more often: whether an AI output your company published infringes someone else's work. The answer follows ordinary copyright law. If the output reproduces protected expression from an existing work, publishing it is infringement, and it does not matter that a tool produced it. (17 U.S.C. §§ 106, 501(a).) Lack of intent is not a defense to liability, though it can reduce statutory damages. (17 U.S.C. § 504(c)(2).) A company that cannot show where its content came from is poorly placed to defend a claim, which is another reason to keep the generation records.

Disputes we see

A marketing agency delivers AI-generated copy and images, the client later discovers the images resemble a stock photographer's portfolio, and a demand letter arrives. A software company uses an AI coding assistant and finds a block of licensed open source code in its product. A business registers a catalog without disclosing that the descriptions were generated, and the registration is challenged in the lawsuit it later files. Each of these turns on records: what was generated, what a human changed, and what the vendor promised.

The firm's intellectual property litigation practice covers the related trademark and trade secret issues, and our page on copied website content covers the remedies when your human-authored work is the one taken. California's own AI disclosure rules, including the AI Transparency Act, are a separate compliance question from copyright.

What to bring to the first meeting

Bring the content in dispute and the prompts, drafts, and edit history that produced it. Bring the terms of service of the tool you used, with the date you accepted them. Bring any registration applications and what they disclosed. If you received a claim, bring the letter and the work it says you copied. Our page on the elements of copyright infringement explains what the claimant must prove.

Frequently asked questions

Can AI-generated content be copyrighted?

Not if the machine did all the creative work. The Copyright Act requires a human author, so purely AI-generated output is not protected. (Thaler, 130 F.4th at p. 1041.) Content a person created with AI assistance can be protected as to the human contribution, such as the selection, arrangement, and revision of the output.

Who owns content created with AI tools?

Nobody owns the purely machine-generated portion. The human-authored portion belongs to its author, which for an employee's work means the employer and for a contractor's work means the contractor unless assigned in writing. (17 U.S.C. §§ 201(b), 204(a).) The tool vendor's terms may also claim or disclaim rights in the output; read them.

Is using AI-generated content copyright infringement?

It can be. If the output reproduces protected expression from an existing work, publishing it infringes, regardless of how it was made. (17 U.S.C. §§ 106, 501(a).) Whether the training itself infringes is unsettled and is being decided case by case under fair use. Keep records of the prompts and the sources.

Do I have to tell the Copyright Office that I used AI?

Under the Office's guidance, applicants are expected to disclose AI-generated material that is more than minimal and to exclude it from the claim. An application that conceals it risks a challenge to the registration in later litigation, where the certificate's evidentiary weight matters. (17 U.S.C. § 410(c).)

Can I copyright AI content I edited?

Yes, as to your edits and your creative selection and arrangement, if they are original. (17 U.S.C. § 102(a); Feist, 499 U.S. at p. 345.) The threshold for creativity is low, but the Office has refused claims where the human contribution was limited to writing the prompt. Document what you changed.

Talk to a California intellectual property attorney

If AI-generated content is at the center of an ownership question or an infringement claim, call (909) 235-6116 or contact us online. Kolmogorov Law, P.C. is at 327 Magnet, Irvine, CA 92618, and represents businesses in Orange County, Los Angeles, and throughout California. See also our intellectual property litigation and AI vendor contracts pages.

This page provides general information about federal copyright law and is not legal advice. Outcomes depend on how the content was made, the records kept, and the court, and this area of law is changing quickly.