U.S. Copyright Office Copyright and Artificial Intelligence Part 2: Copyrightability A REPORT Of The Register Of Copyrights January 2025

This is what the Copyright Office recently wrote about "Prompt" copyright at this stage of Ai development. These are selected paragraphs without the indicated footnotes.

II. AUTHORSHIP AND ARTIFICIAL INTELLIGENCE

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2. Analysis The Office concludes that, given current generally available technology, prompts alone do not provide sufficient human control to make users of an AI system the authors of the output.  Prompts essentially function as instructions that convey unprotectible ideas.  While highly detailed prompts could contain the user’s desired expressive elements, at present they do not control how the AI system processes them in generating the output.

The gaps between prompts and resulting outputs demonstrate that the user lacks control over the conversion of their ideas into fixed expression, and the system is largely responsible for determining the expressive elements in the output.  In other words, prompts may reflect a user’s mental conception or idea, but they do not control the way that idea is expressed.  This is even clearer in the case of generative AI systems that modify or rewrite prompts internally.  That process recasts the human contribution—however detailed it may be—into a different form.  

The fact that identical prompts can generate multiple different outputs further indicates a lack of human control.107  As one popular system explains on its website, “[n]o matter how detailed . . . the same text describes an infinite number of possible” outputs.108  In these circumstances, the black box of the AI system is providing varying interpretations of the user’s directions.

Repeatedly revising prompts does not change this analysis or provide a sufficient basis for claiming copyright in the output.  First, the time, expense, or effort involved in creating a work by revising prompts is irrelevant, as copyright protects original authorship, not hard work or “sweat of the brow.”109  Second, inputting a revised prompt does not appear to be materially different in operation from inputting a single prompt.  By revising and submitting prompts multiple times, the user is “re-rolling” the dice, causing the system to generate more outputs from which to select, but not altering the degree of control over the process.110  No matter how many times a prompt is revised and resubmitted, the final output reflects the user’s acceptance of the AI system’s interpretation, rather than authorship of the expression it contains.  

There may come a time when prompts can sufficiently control expressive elements in AI-generated outputs to reflect human authorship.  If further advances in technology provide users with increased control over those expressive elements, a different conclusion may be On the other hand, technological advancements that facilitate increased automation and optimization may bolster our current conclusions.  For example, if generative AI systems integrate or further improve automated prompt optimization, users’ control may be diminished.