Not necessarily. The referenced guidance [0] says: "...copyright will only protect the human-authored aspects of the work, which are 'independent of' and do 'not affect' the copyright status of the AI-generated material itself." If you read the paragraph or two above that one, it really seems like products of agentic coding cannot be copyrighted, as there wouldn't be significant authorship involved.
Very glad someone actually read the decision and understood it, despite how much reporting on this has been poor. This was not a case about "can AI-generated art be copyrighted?", despite all the reporting misleading people. (Including me, until somebody finally pointed me at the actual decision — https://www.lexology.com/library/detail.aspx?g=24e0581c-2c28... — and I could read it for myself). The judge literally quoted that case where a monkey picked up a photographer's camera and triggered it, saying that only humans can hold copyright: not animals, and not tools. And he also specifically said that he was not addressing "how much input is necessary to qualify the user of an AI system as an ‘author’ of a generated work".
So it's not the case, contrary to what many people (including me!) have said before, that the decision was "works produced by AI tools cannot be copyrighted". Rather, it's "you cannot assert that the AI tool itself is the author, you must assert that a human is the author". And the amount of work put into the prompt will definitely matter.
In other words, if you just prompt “draw a picture of a cat” then it’s possible you didn’t put enough work into the image to count as the author. But if you have a specific picture in mind that you want to create, and you prompt “draw a picture of a two-year-old cat with orange fur and orange eyes, in a sitting position, looking out of the window of a train. The interior of the train is lit with dim orange lighting. Outside, it is night and there is a full moon visible through the train window,” and then you refine that prompt until the AI produces an image close enough to what you had in your mind’s eye, then that image is clearly your own creation: the AI tool was just the tool you used to take the idea in your head and turn it into an image that other people could look at. Whether you use a paintbrush, a digital-art creation tool like Krita, or a digital-art creation tool like Midjourney, as long as you came up with the concept and did the necessary work to make the tool produce the image, then you're the author and you can assert copyright. (Note that this paragraph is my own opinion, not the judge's ruling, but I think it's a pretty defensible opinion: "draw a picture of a cat" might not be specific enough to assert that you created the resulting image, but "draw this very specific picture that I have in mind" is specific enough).
Thanks for the link to the actual decision; the lawyer's summary included a link to download a PDF of the decision, but a direct link is useful to have.
... Actually, on double-checking, the lawyer's summary I linked to lets you download a PDF of the original judge's decision (written by Judge Beryl A. Howell). The link you provided is to the appelate court, affirming the original decision (appelate court opinion written by Circuit Judge Millett). So both links are useful.
As for your "Where did they say this?", that sentence (the amount of work will matter) is my summary. The original decision said the following (page 13 of the PDF of Howell's decision):
> The increased attenuation of human creativity from the actual generation of the final work will prompt challenging questions regarding how much human input is necessary to qualify the user of an AI system as an “author” of a generated work... This case, however, is not nearly so complex.
And then there's this from the appelate court decision, on pages 18-19 (italics in original):
> First, the human authorship requirement does not prohibit copyrighting work that was made by or with the assistance of artificial intelligence. The rule requires only that the author of that work be a human being—the person who created, operated, or used artificial intelligence—and not the machine itself. The Copyright Office, in fact, has allowed the registration of works made by human authors who use artificial intelligence. See Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16,190, 16,192 (March 16, 2023) (Whether a work made with artificial intelligence is registerable depends “on the circumstances, particularly how the AI tool operates and how it was used to create the final work.”).
So although those words ("the amount of work put into the prompt will definitely matter") do not appear in either decision, the meaning is clear. Whether a work can be copyrighted will depend on unnamed circumstances including how the AI tool was used. The conclusion I draw from that is that "how the tool was used" is going to include "how much detail was specified", i.e. "draw a cat" doesn't make you the author, but "draw this very specific picture of a cat that I have in mind" will. That's my opinion, as I pointed out in the next paragraph — but now you know which parts of the decision(s) I based that opinion on.
> Whether a work can be copyrighted will depend on unnamed circumstances including how the AI tool was used. The conclusion I draw from that is that "how the tool was used" is going to include "how much detail was specified"
The Copyright Office's guidance the court cited said it would not.
If a work’s traditional elements of authorship were produced by a machine, the work lacks
human authorship and the Office will not register it 26 For example, when an AI technology
receives solely a prompt 27 from a human and produces complex written, visual, or musical
works in response, the “traditional elements of authorship” are determined and executed
by the technology—not the human user. Based on the Office’s understanding of the
generative AI technologies currently available, users do not exercise ultimate creative
control over how such systems interpret prompts and generate material. Instead, these
prompts function more like instructions to a commissioned artist—they identify what the
prompter wishes to have depicted, but the machine determines how those instructions are
implemented in its output.[1]
And the Copyright Office rejected a claim 624 iterations of experiment and refining was authorship.[2]
Another court could change this.
> That's my opinion, as I pointed out in the next paragraph
You said the next paragraph was your opinion in the next paragraph.
Right. It’s the right decision (for now) that only humans hold copyright.
There’s a whole other mess of fair rights and attribution but in this case, the ruling actually makes the path clearer for an author of such a piece to get it copyrighted. Ironic. But that’s how case law is supposed to be.
When I started my career it was in graphic design in the late 90s and photoshop was all the rage. There was a similar discussion as you pointed out around copyright and photo-manipulation technique. Who owns the photo? Who owns the piece? Then concept arts “kit bash” with reference photos to paint quickly… again who owns the refs? Who owns the piece? Deviantart had to struggle to figure out how to respect both.
I didn’t have to read too far to understand exactly where the court was going with this and where he could have just turned around with another filing and been gold.
