Summary. This guide takes creators, businesses, and their lawyers step by step through registering a work made with generative AI tools and protecting the parts that copyright will not reach. It begins with the rules that drive every decision: the human-authorship requirement affirmed in Thaler v. Perlmutter, the Copyright Office's March 2023 registration guidance and January 2025 Part 2 report, and the duty of candor enforced through Section 411(b) and Unicolors. It then works through ten steps, from inventorying who contributed what and deciding what is claimable, through ownership, the application, the deposit, examiner correspondence, reconsideration, and corrections to older registrations, to layering contract, trade secret, and trademark protection and enforcing or defending the work. Each step explains what to file, what to say, what it costs, and how long it takes. A timeline and cost table, a worked example that follows a graphic novelist from first draft to an infringement claim, a refusal scenario for a marketing agency, common mistakes, and an FAQ complete the guide, which is current as of September 2026.

The email from the Copyright Office tends to arrive a couple of months after filing, and it is polite. The examiner has noticed what looks like AI-generated material in the deposit and wants to know how the work was made, which parts a person created, and why the application did not say so. What the applicant writes back, and whether any records exist to support it, decides whether the certificate that eventually issues will survive the first deposition in an infringement case. This guide is about arriving at that moment prepared, and about protecting the parts of the work that no certificate will cover.

The short answer

Register the human layer and nothing else. Use the Standard Application, name only human authors, describe what those humans contributed in the Author Created field, and exclude the AI-generated material in the Limitation of Claim section. Keep a contemporaneous record of who did what, because the examiner may ask and an opposing lawyer certainly will. File early, ideally before publication or within three months after it, so that statutory damages and fees remain available. If the Office refuses, you have three months to ask it to reconsider, a second request after that, and then the courts. If you registered AI-assisted work in the past without disclosing it, correct the record with a supplementary registration now, before anyone sues. Then protect what copyright will not reach with contracts, trade secrets, and trademarks, and enforce only what you actually own.

For the doctrine behind these steps (Burrow-Giles, Feist, Thaler, Zarya of the Dawn, and the Office's guidance in detail), read the companion article, Copyright in AI-Assisted Works: Human Authorship, Thaler v. Perlmutter, and the Copyright Office Guidance. This guide assumes that background and concentrates on procedure.

The rules that shape every step

Rule Source What it means for your filing
Copyright protects "original works of authorship," and an author must be human 17 U.S.C. § 102(a); Thaler v. Perlmutter, 130 F.4th 1039 (D.C. Cir. 2025), cert. denied (2026); Compendium (Third) §§ 306, 313.2 No AI system can be named as an author or co-author
Originality requires independent human creation and a modicum of creativity Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991); Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) Small but real human choices in selection, arrangement, or modification can be claimed
AI-generated material that is more than de minimis must be disclosed and excluded Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16,190 (Mar. 16, 2023) The Limitation of Claim section is mandatory, not optional
Prompts alone do not give a user control over the expressive output U.S. Copyright Office, Copyright and Artificial Intelligence, Part 2: Copyrightability (Jan. 2025) Do not claim prompted images, text, or music as your authorship
The application must identify the authors, the claimant, and any preexisting or excluded material 17 U.S.C. § 409; 37 C.F.R. Part 202; Compendium (Third) §§ 503, 621 Every field is a statement to a federal agency
A knowingly inaccurate application can be disregarded in litigation 17 U.S.C. § 411(b); Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 595 U.S. 178 (2022) Good-faith mistakes are forgiven; knowing omissions are not
Registration timing controls remedies 17 U.S.C. § 412; 17 U.S.C. § 410(c) Register before infringement or within three months of publication; register within five years for the presumption of validity
You cannot sue until the Office registers or refuses 17 U.S.C. § 411(a); Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019) Pending applications do not open the courthouse door; plan for processing time

Two features of this framework drive everything below. First, the human-authorship rule operates element by element. A single book can contain fully protected text, protected arrangement, partly protected illustrations, and unprotected images, and the application must sort them. Second, the system runs on the applicant's statements. Examiners rarely see the creative process; they see what you tell them and the deposit. That makes candor the applicant's main asset and the defendant's main target.

Step 1: Inventory the workflow and every contribution

Before you open the application, build an inventory of how the work was made. Do this even for a modest project. It takes an hour while memories are fresh and weeks to reconstruct during litigation.

What the inventory covers. For each element of the work (each chapter, illustration, track, level, module, or page), record:

  1. Who made it, by name, and whether that person is an employee, a contractor, or a collaborator.
  2. What tools were used, including the AI system, its version or model if known, and the account under which it was used.
  3. What went in: prompts, reference images, the creator's own sketches or drafts, style references, and parameters.
  4. What came out and what was kept: which outputs were selected, and roughly how many were generated and discarded.
  5. What the human did next: rewriting, repainting, compositing, re-recording, refactoring, arranging, or nothing.
  6. Where the evidence lives: file paths, project files with layers or version history, platform exports, repository commits.

What to gather. Export prompt and generation histories from each platform now, because retention periods vary and some platforms delete history or close accounts. Preserve layered source files (PSD, PROCREATE, or equivalent), digital audio workstation projects, document version histories, and code repository logs. Keep dated sketches and drafts. If the work was made by a team, ask each contributor for a short written description of their role.

Why it matters for proof. Records made at the time, in the ordinary course of the work, are far more persuasive than declarations written after a dispute begins, and they are easier to admit. A log kept as a regular practice may qualify as a business record under Fed. R. Evid. 803(6), and platform exports and file metadata will need authentication under Fed. R. Evid. 901. Once litigation is reasonably anticipated, the duty to preserve attaches, and losing electronically stored information that should have been kept can lead to sanctions under Fed. R. Civ. P. 37(e).

A ready-made contribution log, with columns for each of the items above, is Template 2 in the Generative AI Authorship Toolkit: Disclosure Statements, Contribution Logs, and Ownership Clauses.

Step 2: Decide what you can claim

With the inventory in hand, sort every element into one of four bins. The Copyright Office applies these distinctions case by case, so treat the following as a disciplined first pass rather than a guarantee.

Bin What belongs here How the application treats it
Fully human Text you wrote; art you drew or painted; music you composed and performed; code you wrote; photographs you took Claim it as your authorship
Human selection, coordination, and arrangement The sequence and layout of AI images in a comic; the curation and ordering of AI-generated tracks or textures into a larger work; the structure of a compiled dataset or anthology Claim "selection, coordination, and arrangement" of the material, and exclude the underlying AI material (17 U.S.C. § 101; 17 U.S.C. § 103)
Human modification or perceptible human input AI output you substantially repainted, rewrote, or re-edited; your own sketch, photograph, or draft that remains visible in an AI-assisted result Claim the modifications or the human-authored input that remains perceptible, and exclude the rest
AI-generated Images, text, music, or code produced from prompts and used as generated, or with only trivial changes Exclude it, unless it is de minimis

Is it de minimis? Disclosure is required for AI-generated material that is more than de minimis, which in practice means material that would be independently copyrightable if a human had made it. An AI-suggested synonym, a grammar correction, an auto-completed line of boilerplate code, or a background texture nobody would notice does not need to be disclosed. A paragraph, an image, a melody, or a function does.

Is the human contribution more than trivial? A modest amount of genuine creative choice is enough under Feist, and a "distinguishable variation" can be original. Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99 (2d Cir. 1951). But cropping, color correction, upscaling, denoising, and other technical adjustments generally are not authorship, as the Office concluded about the upscaling in the Théâtre D'opéra Spatial decision and as the Tenth Circuit held about faithful digital models in Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258 (10th Cir. 2008).

Special cases that come up constantly.

  • Text drafted with an AI assistant and heavily rewritten. Claim the text as yours to the extent you rewrote it; exclude passages kept substantially as generated. If the whole manuscript went through the machine and back, describe the process honestly and let the examiner ask.
  • Machine translation. A translation produced by an AI system is AI-generated material. A human translation that used AI suggestions as a starting point and was rewritten is human authorship.
  • Photographs edited with generative fill. The photograph is yours; the generated fill is not, unless it is trivial. Exclude "AI-generated image elements" if they are more than de minimis.
  • Music with AI-generated stems or vocals. Claim the composition and the performances you created; exclude AI-generated sound recordings and any AI-generated melodic material.
  • Code from an assistant. Claim the code you wrote and the program's human structure; exclude code accepted substantially as generated. See Copyright Registration of Computer Programs for deposit rules.
  • Work generated "in your style" by a model trained on your art. Style is not protectable in any event, and the Office has not treated training a model on your work as authorship of its outputs. See The Fine Line: Copyright Protection for Style, Typefaces, and Fonts.

When you cannot decide. Claim conservatively, describe the process in the Note to Copyright Office field, and let the examiner tell you what more can be claimed. The 2023 guidance expressly allows applicants who are unsure to state generally that the work contains AI-generated material, after which the Office follows up. An honest, slightly narrow claim can be broadened later through correspondence or a supplementary registration; an overbroad one is a § 411(b) problem waiting to happen.

Step 3: Confirm ownership and the chain of title before you file

The application asks who the authors are and who the claimant is. Answering requires knowing who owns the human layer, which turns on the same rules that govern any work. The AI platform is never an author and never a claimant, whatever its terms say.

  1. Employees. Work created by an employee within the scope of employment is a work made for hire; the employer is the author and the claimant. 17 U.S.C. § 201(b). Employee status is decided under the common-law agency factors of Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), and courts look at substance, not labels, as in JustMed, Inc. v. Byce, 600 F.3d 1118 (9th Cir. 2010). On the application, list the employer as author, answer "yes" to the work-made-for-hire question, and list the employer as claimant.
  2. Contractors. A contractor's work is made for hire only if it fits one of the nine categories in 17 U.S.C. § 101 and a signed writing says so. The Seventh Circuit requires that writing before the work is created, Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410 (7th Cir. 1992); the Second Circuit accepts a later writing that confirms an earlier agreement, Playboy Enterprises, Inc. v. Dumas, 53 F.3d 549 (2d Cir. 1995). Otherwise, ownership passes only by a signed assignment, 17 U.S.C. § 204(a). On the application, list the contractor as author and your company as claimant with a transfer statement such as "By written agreement."
  3. No writing at all. Without a work-for-hire agreement or an assignment, the commissioning party typically holds only an implied nonexclusive license and cannot register as claimant. Effects Associates, Inc. v. Cohen, 908 F.2d 555 (9th Cir. 1990). Get the assignment signed before filing. A confirming assignment signed now can transfer ownership; it cannot change who the author was.
  4. Collaborators. Name every human joint author. Someone whose only contribution was prompting or running the generator may not have contributed independently copyrightable expression and may not be a joint author at all. Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000). Settle that question with your collaborators in writing before you file, not after the certificate issues without their names on it.
  5. Platform terms. Save the version of each platform's terms in force when the work was made. Most assign the provider's rights, if any, to the user and reserve a license for the provider. Those terms do not affect who the author is, but they matter for confidentiality, for any restrictions on commercial use under free tiers, and for indemnities. The deal points are covered in Licensing Data and Models for Artificial Intelligence: Training Rights, Outputs, and Indemnities.
  6. Third-party material. Stock images, licensed fonts, sampled audio, and other preexisting material owned by others must also be excluded, and you need licenses to use them. The Copyright Licensing and Clearance Toolkit: Permissions, Rights, and Chain of Title has clearance logs.

For a structured walk-through of employee and contractor status, use the Work Made for Hire Determination Checklist.

Step 4: Choose the application, the unit of registration, and the timing

Use the Standard Application. The Single Application ($45) is limited to one work created entirely by one individual who owns it, and it has no screen for excluding material. A work that contains AI-generated material that must be excluded does not fit. The Standard Application ($65 when filed online) accommodates multiple authors, works made for hire, transfers, and a Limitation of Claim. If the version of the online form you see includes a dedicated question about AI-generated content, answer it consistently with the fields described in Step 5.

Be careful with group options. The Office's group registrations (for unpublished works, photographs, short online literary works, contributions to periodicals, and others) save money but impose conditions, such as a common author or claimant, and some leave little room for excluding material. If a group would include AI material, confirm before filing that the option permits the exclusion you need; if it does not, file individually.

Consider splitting the claim. If the most valuable elements are purely human (a script, a character design, a musical composition), register them separately as stand-alone works before or alongside the larger AI-assisted work. A separate registration for the human-drawn characters produces a clean certificate with no limitation for the assets most likely to be copied, while the registration of the finished work covers the arrangement and everything else that is human.

Get publication status right. Published and unpublished works are registered differently, and the definition of "publication" in 17 U.S.C. § 101 is not intuitive for works that live online. Misstated publication status is one of the most litigated registration errors; in Unicolors the problem was a "unit of publication" that included designs not actually published together, and in Archie MD, Inc. v. Elsevier, Inc., 261 F. Supp. 3d 512 (S.D.N.Y. 2017) it was whether licensing a work had published it. Good faith saved both registrations, but neither plaintiff enjoyed the detour.

Mind the remedies clock. Under 17 U.S.C. § 412, statutory damages and attorney's fees are unavailable for infringement of an unpublished work that began before the effective date of registration, or for infringement of a published work that began after publication and before registration, unless registration was made within three months of first publication. The effective date is the day the Office receives a complete application, deposit, and fee, 17 U.S.C. § 410(d), not the day the certificate issues. Courts read "commenced" broadly: an infringement that began before registration and continued afterward, even in a different form, usually stays outside § 412. Southern Credentialing Support Services, L.L.C. v. Hammond Surgical Hospital, L.L.C., 946 F.3d 780 (5th Cir. 2020). The practical rule: file before release, or within three months after it.

Pay for speed only when you need it. Special handling, which costs $800 on top of the filing fee, puts the claim at the front of the line, typically about five working days, and is available when litigation is pending or expected, for customs matters, or for contract or publishing deadlines (Compendium (Third) § 623; Copyright Office Circular 10). Because a pending application is not enough to sue under Fourth Estate, special handling is how owners who registered late get into court quickly. It does not cure the § 412 problem.

Step 5: Complete the application and prepare the deposit

Work through the Standard Application screen by screen. The fields that matter most for AI-assisted works are the author information, the Author Created field, and the Limitation of Claim.

  1. Type of work. Choose the category that matches the predominant authorship you are claiming: literary work, work of the visual arts, work of the performing arts, sound recording, or motion picture or audiovisual work. A comic with substantial art usually goes in as visual arts; a novel with an AI cover as a literary work; a game as an audiovisual work.
  2. Title and publication. Give the title as it appears on the work, the year of completion, and, if published, the date and nation of first publication.
  3. Authors. List only human authors (or the employer for a work made for hire). Never list the AI system or its developer. Give citizenship or domicile for each.
  4. Author Created. Check the boxes that describe the human contribution (text, 2-D artwork, photographs, music, sound recording, computer program, compilation, and so on) and use the "Other" field for precision. Write in plain words what the person did: "text and selection, coordination, and arrangement of text and images"; "photographs and editing of AI-generated elements"; "musical composition, lyrics, and vocal performance"; "computer program code and selection and arrangement of program modules." Do not write "AI-assisted artwork," "prompt engineering," or "created using Midjourney." Those phrases describe a process, not authorship.
  5. Claimants. Name the owner. If the claimant is not the author, include a transfer statement.
  6. Limitation of Claim. Under Material Excluded, identify the AI-generated material with a brief, accurate description: "AI-generated images," "AI-generated text," "AI-generated background artwork," "AI-generated sound recordings," "AI-generated source code." Naming the tool is optional. Exclude third-party and previously registered material here as well. Under New Material Included, describe the human contribution again, in the same terms as Author Created.
  7. Note to Copyright Office. Add three to six sentences explaining the process in concrete terms, and offer to provide records. A useful model: "The author wrote all text and drew all character artwork by hand. Background images on pages 4 to 61 were generated with an AI image tool and are excluded. On twelve splash pages, the author's own sketches were used as inputs and the AI outputs were then substantially repainted; the repainting and the sketches are claimed. Layered source files and generation logs are available on request."
  8. Certification. The person certifying states that the information is correct to the best of his or her knowledge. Make sure that person has read the contribution inventory. A knowingly false material statement in an application is a federal offense, 17 U.S.C. § 506(e), and invites a § 411(b) challenge.

Sample entries for common situations:

Work Author Created Material Excluded
Novel with an AI-generated cover image Text AI-generated cover artwork
Graphic novel with AI backgrounds Text; 2-D artwork (character illustrations); selection, coordination, and arrangement of text and images AI-generated background images
Photo series with generative fill Photographs; editing and compositing AI-generated image elements
Song with AI-generated backing track Music; lyrics; vocal performance (sound recording) AI-generated instrumental sound recording
App with assistant-generated code Computer program; selection and arrangement of program modules AI-generated source code
Video game Audiovisual material; text; computer program; selection and arrangement AI-generated textures; AI-generated dialogue; AI-generated source code
Marketing campaign compilation Photographs; text; selection, coordination, and arrangement of images and text AI-generated images

The deposit. Deposit the complete work, including the AI-generated material you excluded; the exclusion is made in the application, not by removing anything from the copy. Published works generally require the best edition, and unpublished works a complete copy, under the deposit rules in 37 C.F.R. § 202.20. Computer programs are deposited as identifying portions of source code, with options for blocking out trade secret material; see Copyright Registration of Computer Programs. Games, websites, and photographs have their own conventions, covered in Copyright Registration of Games and Copyright Registration of Photographs. For a field-by-field walk-through of an ordinary application, see How to Register a Copyright with the U.S. Copyright Office.

Step 6: Answer the examiner

Examiners write to applicants when something in the deposit or the application does not add up: images that look generated, an Author Created entry that claims "entire work" for a book with obviously machine-made art, or public statements about how the work was made. (Zarya of the Dawn was reopened because of the author's social media posts.) The message typically asks how the AI tool was used, which elements a person created, and whether the applicant will agree to a narrower claim, sometimes proposing the language.

Meet the deadline. The message sets a response deadline, commonly forty-five days. If you miss it, the Office may close the file, and a new application gets a new effective date, which can cost you statutory damages under § 412. Calendar the date the day the email arrives.

Answer element by element. Generalities lose. Identify the specific pages, tracks, files, or modules; say what the human did to each; and, for modifications, consider attaching before-and-after images or excerpts. The Review Board refused to credit Jason Allen's Photoshop work in the Théâtre D'opéra Spatial matter largely because he did not describe it with enough specificity for the Board to evaluate. Your contribution inventory from Step 1 is the source for this answer.

Remember that the record is permanent. The correspondence becomes part of the Office's file, which an opponent can obtain, and courts reviewing a refusal confine themselves to it. Stephen Thaler told the Office that his machine created the work autonomously; when he later argued that he was the author, both courts held him to what he had said. Thaler v. Perlmutter, 687 F. Supp. 3d 140 (D.D.C. 2023), aff'd, 130 F.4th 1039 (D.C. Cir. 2025). Say what is true, say it precisely, and do not volunteer theories you have not thought through.

Decide whether to accept a narrower claim. This is the main decision point in the process.

If Then consider
The excluded material has little independent commercial value Accept the examiner's limitation and take the certificate; you keep your effective date
The disputed element is the commercial heart of the work and your human contribution to it is real and documented Push back with specifics, and be prepared to seek reconsideration if refused
You need to sue soon Accept now, sue on the limited registration, and pursue a broader claim separately if it matters
You are building a test case on prompting or control Expect a refusal, a Review Board decision, and a federal lawsuit measured in years, as in Allen v. Perlmutter (D. Colo., filed 2024)

Step 7: If the Office refuses: reconsideration, the Review Board, and court

A refusal, in whole or in part, starts a two-level administrative appeal under 37 C.F.R. § 202.5, described in Compendium (Third) chapter 1700.

  1. First request for reconsideration. File in writing within three months of the date of the refusal notice, with the fee ($350 per claim under the current schedule in 37 C.F.R. § 201.3). Explain why the refusal was wrong, with legal argument and any additional facts about the human contribution. The request gets a fresh review within the Registration Program, and the Office aims to respond within about four months.
  2. Second request for reconsideration. If the first request fails, file a second request within three months, with a $700 fee. It is decided by the Review Board, a three-member panel of senior Office officials. Its decision is the Office's final agency action (Compendium (Third) § 1706). The published Board decisions in Théâtre D'opéra Spatial (September 2023) and SURYAST (December 2023) are examples of how these requests are analyzed.
  3. Judicial review. A final refusal can be challenged under the Administrative Procedure Act, which applies to the Office's registration decisions, 17 U.S.C. § 701(e); 5 U.S.C. § 702. The court sets aside the refusal only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, 5 U.S.C. § 706, and it reviews the administrative record rather than new evidence. Courts have sent refusals back when the Office's reasoning was inadequate, Atari Games Corp. v. Oman, 888 F.2d 878 (D.C. Cir. 1989), and when it applied too demanding a creativity standard, Atari Games Corp. v. Oman, 979 F.2d 242 (D.C. Cir. 1992), but they usually uphold reasoned refusals. OddzOn Products, Inc. v. Oman, 924 F.2d 346 (D.C. Cir. 1991); Darden v. Peters, 488 F.3d 277 (4th Cir. 2007).
  4. The infringement-suit alternative. If someone is copying the work, you need not win the registration fight first. After a refusal, 17 U.S.C. § 411(a) lets the applicant sue for infringement anyway by serving notice and a copy of the complaint on the Register, who may join the case within sixty days on the issue of registrability. The court then decides copyrightability itself, giving the Office's reasoning the weight it earns. This route puts the question before a judge with a real dispute and a real defendant, which is sometimes a better vehicle than an APA case.

How to decide whether to appeal. Ask what the disputed material is worth, whether anyone is copying it, how long you can wait, and whether the facts are good enough to make law. Documented, specific human control is a better test case than hundreds of prompts.

Step 8: Correct older registrations

If you registered a work containing more than de minimis AI-generated material without disclosing it (many applicants did before March 2023, and some still do), correct the record now. The 2023 guidance told applicants to do exactly that.

The tool is a supplementary registration under 17 U.S.C. § 408(d) and 37 C.F.R. § 202.6. It corrects or amplifies the information in a basic registration without replacing it; the two are cross-referenced in the public record, and the supplementary registration gets its own number and effective date (Compendium (Third) § 1802). Filed online, it costs about $100. Use it to add a Limitation of Claim excluding the AI material and to restate the human contribution. If the work contained so little human authorship that nothing registrable remains, the Office may instead cancel the registration under its cancellation rules in 37 C.F.R. § 201.7, which is what it did with the original Zarya certificate before issuing a narrower one.

Why bother if no one has sued? Because the § 411(b) analysis turns on what the applicant knew, and the longer an owner sits on a registration it knows is overbroad, the harder it is to claim good faith. Under Unicolors, an honest mistake of fact or law is a defense, but willful blindness is not. Courts have also refused to invalidate registrations for good-faith inaccuracies, Roberts v. Gordy, 877 F.3d 1024 (11th Cir. 2017), while holding that once knowledge is shown no separate intent to defraud is required, Gold Value International Textile, Inc. v. Sanctuary Clothing, LLC, 925 F.3d 1140 (9th Cir. 2019). A correction filed before any dispute is the cleanest evidence of good faith you will ever have. A correction filed after a defendant raises the issue will be described as an admission.

Step 9: Protect what the registration does not reach

The certificate covers the human layer. The rest of the work's value needs other protection, put in place before release.

Contracts. End-user licenses, platform terms, client agreements, and collaboration agreements can restrict copying, extraction, and reuse of material whether or not it is copyrighted, and courts enforce them between the parties. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996). A contract that simply restates copyright-like exclusivity against everyone who visits a site risks preemption under 17 U.S.C. § 301, which reaches even unprotectable elements of works within copyright's subject matter. NBA v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997). Draft for the relationship: real assent, consideration, and specific use restrictions. On formation, see Website Terms of Service and Online Contract Formation: Clickwrap, Browsewrap, and Enforceable Arbitration.

Trade secrets. Prompt libraries, system prompts, fine-tuned models, curated datasets, and production workflows can be trade secrets if they have value because they are secret and you take reasonable measures to keep them so. 18 U.S.C. § 1839(3); 18 U.S.C. § 1836. Reasonable measures for AI workflows include enterprise accounts whose terms bar the provider from training on your inputs, access controls on prompt libraries, confidentiality agreements with staff and contractors, and logging. Employers who want exemplary damages and fees under the federal statute must give employees and contractors the whistleblower-immunity notice described in 18 U.S.C. § 1833(b). The Trade Secret Protection Toolkit: Building and Defending a Confidentiality Program has the policies.

Trademarks. Names, logos, and character designs that identify the source of goods or services can be registered and enforced regardless of how they were designed. 15 U.S.C. § 1051; 15 U.S.C. § 1127. Trademark law will not stop non-confusing copying of the underlying art, and the Lanham Act cannot be used as a back door to copyright protection for creative content. Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003).

Notices and provenance. Use a copyright notice on the work as a whole, 17 U.S.C. § 401, keep your copyright management information intact so that its removal is actionable under 17 U.S.C. § 1202, and consider embedding provenance metadata (content credentials) that records which elements were generated and which were human-made. Transparent provenance is becoming a market expectation and, for some providers and deployers in the European Union, a legal one under the AI Act's transparency rules for synthetic content.

Step 10: Enforce, or defend against, a claim on an AI-assisted work

Before the owner sends anything

  1. Map the copying against the certificate. Pull your certificate and the public record of the claim. Lay what the other side used next to what you claimed and what you excluded. If everything taken sits in the excluded column, stop: there is no copyright claim, and a threatening letter may draw a declaratory judgment action or a fee award.
  2. Register now if you have not. Without a registration or a refusal you cannot sue, and special handling is the fast way to get one. Late registration still lets you sue for actual damages and profits under 17 U.S.C. § 504, even if statutory damages and fees under § 412 are gone.
  3. Audit your own application. Compare the registration to your contribution inventory. If the claim is overbroad, decide with counsel whether to file a supplementary registration before acting, because a defendant will look for exactly that inaccuracy.
  4. Preserve evidence on both sides. Capture the infringing uses with dates and URLs, make test purchases where relevant, and put your own creative records under a litigation hold.
  5. Choose the tool.
  6. Plan the proof. The certificate's presumption of validity covers only what it claims. You will still need to prove copying of protected expression, which means filtering out the AI material before comparing. Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992); Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003). The methods are set out in Litigating Substantial Similarity in a Copyright Case: A Practical Guide.

When you are the accused party

  1. Read the registration first. The Limitation of Claim may already describe the material you used as excluded.
  2. Take discovery on the creative process. Ask for prompt and generation histories, platform account exports, layered files, version histories, and communications about how the work was made. These are relevant and proportional to ownership and validity under Fed. R. Civ. P. 26(b)(1), requested under Fed. R. Civ. P. 34. If the records are gone, ask why.
  3. Raise § 411(b) when the evidence supports it. If the plaintiff knew the work contained undisclosed AI material, move for referral to the Register under 17 U.S.C. § 411(b)(2). In the Seventh Circuit, expect to make a threshold showing of a knowing inaccuracy first. DeliverMed Holdings, LLC v. Schaltenbrand, 734 F.3d 616 (7th Cir. 2013).
  4. Filter, then compare. Argue that the similarities lie in unprotected AI material, ideas, and stock elements, and that what remains is thin.
  5. Consider independent creation. Similar prompts to the same model can produce similar outputs. Expert testimony about the model's behavior must meet Fed. R. Evid. 702.
  6. Evaluate fair use if you did use protected human expression. 17 U.S.C. § 107; Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023). The Fair Use After Warhol: A Practical Guide to the Four Factors in the Age of AI walks through the analysis.
  7. Use summary judgment on protectability. Whether particular material is AI-generated and unprotected is often provable from the plaintiff's own records, which makes it a candidate for summary judgment under Fed. R. Civ. P. 56, and a prevailing defendant may recover fees under § 505.

Timeline and costs at a glance

Stage What happens Typical time Typical out-of-pocket cost
Inventory and records (Step 1) Contribution log, exports, preserved files Hours to a few days Internal time; counsel review if the work is valuable
Ownership paperwork (Step 3) Assignments, work-for-hire agreements, collaborator agreements Days to weeks Drafting fees; signatures
Application and deposit (Steps 4 and 5) Standard Application online One sitting $65 filing fee
Examination Clean claim, no correspondence Often one to three months None
Examiner correspondence (Step 6) Questions about AI use; proposed narrower claim Response due by the stated deadline, commonly forty-five days Counsel time
Special handling (optional) Expedited examination About five working days $800 additional
First reconsideration (Step 7) Written request File within three months; response often about four months $350
Second reconsideration Review Board File within three months; several more months $700
APA lawsuit District court, then appeal Two to three years Substantial legal fees
Supplementary registration (Step 8) Corrects an older claim Months About $100 online
Enforcement (Step 10) Takedown, demand, CCB, or federal suit Days (takedown) to years (litigation) From nominal to six or seven figures

Fees appear in 37 C.F.R. § 201.3 and the Office's fee circular, and they change; confirm before filing.

Worked examples: a graphic novelist's registration and an agency's refusal

A graphic novelist from first draft to an infringement claim

Mara Okafor, whom we met in the companion article, is publishing Saltglass, a 140-page graphic novel. She writes all text, draws the four principal characters by hand, uses an image generator for backgrounds, and on twelve splash pages runs her own sketches through the generator and then repaints the output.

Weeks 1 and 2: inventory and ownership. Mara builds a contribution log page by page: script and dialogue (hers), character art (hers), 118 background panels (generated, one kept per panel from thirty to forty outputs), twelve splash pages (her sketches in, generated output, substantial repainting out). She exports her generation history from the platform and saves layered files for every splash page. Her colorist, a contractor, recolored forty pages; Mara gets a signed assignment from him, since coloring a graphic novel is not obviously within any of the nine work-for-hire categories and she does not want to litigate whether it is.

Week 3: the publisher. Her publisher's form contract has the author warrant that "the Work is wholly original and the Author owns all rights in it." Mara's lawyer revises the warranty to disclose the AI backgrounds and the generator used, limits the ownership warranty to the human-authored elements, and adds a covenant that Mara will cooperate in registration. The publisher agrees and asks for a copy of the contribution log.

Week 4: two registrations. First, Mara registers her character model sheet (all four principal characters, drawn together on one sheet) as an unpublished work of visual art. She is the sole author and owner and there is nothing to exclude, so the $45 Single Application fits, and the most valuable and most copyable assets get a clean certificate with no limitation. Second, she files a Standard Application for the book: Author Created, "text; 2-D artwork (character illustrations and modifications to AI-generated imagery); selection, coordination, and arrangement of text and images"; Material Excluded, "AI-generated background images and AI-generated portions of splash-page imagery"; and a five-sentence Note to Copyright Office. The colorist is listed as a second author for his coloring, with Mara as sole claimant and the transfer statement "By written agreement." Total filing fees: $110.

Week 11: the examiner writes. The examiner asks Mara to identify the splash pages and describe her modifications. Mara responds within a week with page numbers, side-by-side images of her sketch, the raw output, and the final painting for three representative pages, and an offer to provide the rest. The examiner accepts the claim as filed. The certificate issues in week 14 with an effective date back in week 4.

Month 7: the knockoff. A print-on-demand seller is selling posters of whole pages from Saltglass and, separately, prints of six background panels. Mara's lawyer sends takedown notices for the full pages, which include her text, characters, and arrangement, and deliberately does not send notices for the background-only prints, which contain only excluded material. When the seller relists the full pages under a new account, Mara files with the Copyright Claims Board rather than in federal court, because her damages are modest and the seller is an individual; the seller does not opt out. Because both registrations predate the infringement, statutory damages are available, within the Board's caps. The seller's response argues that the book is "AI art." The Board looks at the registration, which already discloses and excludes the backgrounds, and the defense goes nowhere. The time Mara spent in week 1 is what made it go nowhere.

An agency facing a refusal

Brightwater Creative applied to register a campaign compilation and, separately, a product logo developed through many rounds of prompting and then redrawn by hand. The examiner allowed the compilation claim with AI images excluded, and refused the logo, finding the redrawing too close to the generated image to add original expression.

Brightwater's decision tree was short. The logo's value lies in its function as a brand, which trademark law protects through use and registration, not in the artwork as such. A reconsideration request would cost $350, take months, and at best produce a thin copyright in a simple design. Brightwater accepted the refusal, the client filed a trademark application for the logo, and the agency added the refusal to its intake materials so that future clients understand from the start which deliverables copyright can cover. It also filed a supplementary registration for a 2022 campaign it had registered without mentioning AI imagery, and amended its master services agreement template as described in the Generative AI Authorship Toolkit.

Common mistakes

  • Filing before building the inventory. The application then reflects memory and optimism rather than records, and the examiner's first question exposes the gap.
  • Using the Single Application for a mixed work. It has no way to exclude AI material, so the claim is wrong the moment it is filed.
  • Naming the AI system as an author, or the platform as claimant. The Office will reject it, and it signals that the applicant has not read the guidance.
  • Writing process instead of authorship in the Author Created field. "Prompt engineering" and "AI-assisted art" describe what you did with a tool, not what you authored.
  • Excluding nothing because the work feels mostly human. The disclosure duty is triggered by any AI material that is more than de minimis, not by a majority of it.
  • Excluding everything. Disclaiming "all artwork" when you repainted half of it gives away protection you earned. Exclude the AI material, not your edits.
  • Missing the examiner's deadline. A closed file and a new application can cost you statutory damages for an infringement that began in the meantime.
  • Arguing beyond the records. Statements in correspondence bind you later, as Stephen Thaler learned.
  • Leaving older registrations uncorrected. Every month of knowing inaction weakens a good-faith defense under Unicolors.
  • Registering what should stay secret. Deposits of registered works can be inspected at the Copyright Office, so registering a prompt library or workflow document you want to keep confidential undermines its trade secret status. Protect process with trade secret law; register expression.
  • Sending takedown notices for excluded material. It invites a § 512(f) claim and a credibility problem.
  • Treating a "work for hire" label or a platform ownership clause as a solution. Neither creates copyright, and the label often fails for contractors.

Frequently asked questions

How long does it take to register an AI-assisted work?

A clean electronic claim often takes one to three months. Correspondence about AI material adds the time you take to respond plus the examiner's turnaround, so plan for longer. Special handling ($800) cuts examination to roughly a week when litigation or a deadline justifies it. The effective date is the day the Office received a complete application, not the day the certificate issues.

Do I have to name the AI tool I used?

No. The guidance asks for a brief description of the AI-generated material to be excluded, not the product name. Naming the tool is harmless and can make the record clearer, especially in the Note to Copyright Office.

The examiner proposed a limitation that excludes my edits too. What do I do?

Respond within the deadline, explain specifically which elements you created or modified, attach before-and-after examples, and propose corrected language. Examiners often accept a precise, documented counterproposal. If the Office still refuses, you can accept the narrower certificate now and seek reconsideration of the remainder, or seek reconsideration of the whole.

Should I register before or after publication?

Before infringement, and no later than three months after publication, to keep statutory damages and fees available. For works that will be released in installments, registering each installment promptly is cheaper than litigating a § 412 dispute later.

Does a limited registration hurt me in court?

It narrows what you can sue on, but it does not weaken your claim to what you did create, and it is far better than an overbroad registration that a defendant can attack under § 411(b). Plaintiffs with accurate limited registrations win cases about copying of their human expression; plaintiffs with inaccurate broad ones spend their budget defending the certificate.

Can I register my prompts?

A sufficiently creative prompt can be protected as a literary work, but registration protects only the prompt's own text, not the outputs, and the deposit becomes available for inspection at the Office. Most businesses are better served by keeping valuable prompts as trade secrets and registering the finished human expression instead.

My client wants to leave the AI use out of the application. What should a lawyer do?

Decline. An application is a statement to a federal agency, a knowingly false material statement in one is an offense under 17 U.S.C. § 506(e) and potentially under 18 U.S.C. § 1001, and the rules of professional conduct bar lawyers from making false statements of material fact to third parties (ABA Model Rule 4.1). Explain that the omission puts the registration itself at risk under § 411(b), which is usually the argument that persuades.

Is there any way to protect a purely AI-generated work?

Not with a U.S. copyright. Depending on the work, a contract with the people who receive it, a trademark if it identifies source, trade secret protection if it is never published, and in some foreign countries (the UK's computer-generated works provision, for example) local copyright may help. The human-authored arrangement of many AI outputs can also be protected as a compilation.

Practical takeaways

  • Build the contribution inventory before you file. It is the foundation of the application, the answer to the examiner, and your evidence in litigation.
  • Use the Standard Application for any work with more than de minimis AI material, name only human authors, describe the human contribution plainly, and exclude the AI material.
  • Register the purely human, most valuable elements separately so that they carry clean certificates.
  • File before release or within three months after it, and calendar every examiner and reconsideration deadline.
  • Accept a narrower claim when the excluded material has little value; fight only with specific, documented human contributions.
  • Correct older registrations with supplementary registrations now, not after a defendant finds the problem.
  • Protect process with trade secret law, brands with trademarks, and counterparties with contracts.
  • Enforce only what the certificate covers, and if you are defending, start with the registration record and the plaintiff's creative-process documents.

This document is general information, not legal advice for any particular situation; the law changes, and the facts matter.

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