SF Design Agency

Can You Copyright AI-Generated Images? US Law as of November 2026 (Not Legal Advice)

By SF Design Agency Editors · · 5 min read

On this page
  1. What the Copyright Office concluded
  2. The Supreme Court step
  3. What this means for AI-generated images copyright in marketing
  4. How to document human authorship
  5. Copyright is not the same as the vendor's terms
  6. What we could not verify
  7. Frequently asked questions

Under current US law, AI-generated images copyright protection depends on human authorship: the US Copyright Office says copyright does not extend to purely AI-generated material, or to material where there is insufficient human control over the expressive elements, and that prompts alone do not provide sufficient control. A human can still own copyright in the parts they authored, such as their own edits, their selection and arrangement, and any human-made elements in the finished work.

The Office published Part 2 of its report on copyrightability on January 29, 2025. Its principal findings, from the report itself:

  • The use of AI tools to assist, rather than stand in for, human creativity does not affect whether the output can be protected.
  • Copyright protects original expression created by a human author, even if the work also contains AI-generated material.
  • Whether human contributions to an AI output are enough to count as authorship must be analysed case by case.
  • Based on how generally available tools work, prompts do not alone provide sufficient control.
  • Human authors are entitled to copyright in their own perceptible expression in an output, in creative selection, coordination or arrangement of material, and in creative modifications of the output.

On prompts specifically, the report reasons that prompts "essentially function as instructions that convey unprotectible ideas." Even highly detailed prompts, it says, do not currently control how the system produces the result.

The report also says that tools which let a user control the selection and placement of individual creative elements are different from prompts alone, and that whether such modifications reach the originality bar is decided case by case.

The Supreme Court step

The Supreme Court declined review in Thaler v. Perlmutter (No. 25-449) on March 2, 2026, according to Mayer Brown's summary. That left in place a 2025 D.C. Circuit decision upholding the Copyright Office's human-authorship requirement. The Court did not rule on the question itself; it chose not to hear the case. The same firm notes there is no bright-line test for how much human contribution is enough, and that a pending case, Allen v. Perlmutter, concerns a work made with more than 600 prompts and may clarify where the line falls. We did not find a decision in that case when we checked.

1. A purely AI-generated ad image may not be protectable

If a tool produced the image from your prompt and you changed nothing, you may have little or no copyright to enforce against someone who copies it. That does not make it unusable. It means your control over copies rests on contract, trademark and platform rules, not copyright alone.

2. Human contributions can be protected

The Office's conclusions leave room to protect what you author: layouts you compose, original text, your own illustrations, a photo you took that you combine with AI output, and creative edits. Keep these distinct and documented. The report states that copyright can cover creative modifications and the selection and arrangement of material.

3. Keep logos and core brand marks human-made

A logo made by a tool from a prompt is the clearest case of an asset you may not be able to protect. Have a person design the marks you intend to enforce, and treat AI images as supporting material. Our AI brand guidelines template includes a rights line and a never-depict list for exactly this.

4. Disclose AI material when you register

The Office's registration guidance, published in the Federal Register at 88 Fed. Reg. 16,190 (March 16, 2023), is cited in the report for the point that if a work contains more than a de minimis amount of AI-generated material, the applicant should disclose that and describe the human author's contribution. Do not list an AI system as the author; in Thaler, the applicant named the AI as sole author.

How to document human authorship

Records are the practical answer, because the test is case by case. For any asset you may want to protect, keep:

  • The tool, plan and date used, and the prompts or inputs.
  • The options you rejected and why you chose the final one (selection).
  • The edits you made by hand, with before and after files.
  • The human-made elements added: original copy, composed layout, photography, illustration.
  • Names of the people who made each choice.

Mayer Brown's note says to keep detailed records of human creative input in AI-assisted work, not just prompts, and our questions to ask before hiring an AI design agency includes asking the same of any vendor who makes assets for you.

Even when copyright is uncertain, a tool's terms of service decide what you may do with the output and who bears risk. Rules differ by plan. For example, Recraft's pricing page says free-plan images are "owned by Recraft" and not licensed for commercial use, while paid plans grant ownership and commercial rights for images generated while subscribed (read 2026-11-01). Check the terms for every tool before publishing; our guide to choosing an AI image generator for marketing lists what we could and could not verify per model.

What we could not verify

  • We did not find a ruling in Allen v. Perlmutter; check the docket or a current legal summary.
  • This guide covers the US only. The UK, EU and other jurisdictions treat computer-generated works and AI output differently.
  • The Copyright Office's report on training data (Part 3) is outside the scope of this guide.
  • The Supreme Court date and case number come from a law-firm summary, not the docket.

This page is reviewed quarterly. When it changes, a dated note will appear at the top.

Frequently asked questions

Is AI art copyrighted?

Not if it is purely AI-generated, according to the Copyright Office. Human-authored parts of a work that includes AI material can be.

The tool does not decide it. What you contributed does. Prompts alone are not enough, in the Office's view; creative selection, arrangement and edits may be.

Nobody may hold copyright in the unaltered output, but the tool's terms still govern your rights to use it. Read them before you publish.

For registration, the Office's guidance says applicants should disclose more than a de minimis amount of AI-generated material. Ask a lawyer for your specific filing.