Who Owns What Your Team Makes With AI?

Your engineers ship code written with an AI assistant. Your marketing lead generates product copy and hero images. Your pitch deck says the company owns its IP. Does it?

Under U.S. law, a central question is who supplied the creative expression. U.S. copyright protection does not extend to AI-generated material itself. A human-authored work that contains AI-generated material can still be protected, but only as to the human-authored parts. [1] [3] That line affects what copyright your company may own; contracts, trademarks, and confidentiality raise separate questions.

The rule: a human has to be the author

In Thaler v. Perlmutter, a computer scientist applied to register an image and listed his AI system as its sole author. The Copyright Office refused, and the D.C. Circuit affirmed, holding that "the Copyright Act of 1976 requires all eligible work to be authored in the first instance by a human being." [1]

The court read the Act as a whole: copyright generally lasts for the author's life plus 70 years, passes to a widow or children, and is transferred by a signed writing — provisions that assume a human author. [1] It also held that the work-made-for-hire rule could not make him the statutory author of an image asserted to have been created solely by a machine. [1] [8] On March 2, 2026, the Supreme Court denied review, leaving that decision in place. [2]

The court noted that the rule "does not prohibit copyrighting work that was made by or with the assistance of artificial intelligence." [1] But the court did not decide how much human contribution makes a particular AI-assisted work copyrightable.

AI-assisted is not the same as AI-generated

Using AI as an assistive tool does not by itself defeat protection for independently copyrightable human expression; protection does not extend merely because a person directed or accepted AI-generated expression. [3] [4] In the Copyright Office's words, "[n]either the use of AI as an assistive tool nor the incorporation of AI-generated content into a larger copyrightable work affects the availability of copyright protection for the work as a whole." [3] That does not mean every component of the work is protected.

The harder case is where the AI makes the expressive choices. The Office's 2023 guidance gives the example of asking a text tool to "write a poem about copyright law in the style of William Shakespeare": the tool, not the user, decides the words, rhyme, and structure. [4] The guidance compares prompts to "instructions to a commissioned artist" — they say what you want, but the system decides how it is expressed. [4]

Do detailed prompts make you the author?

Not under the Copyright Office's current position. Its January 2025 report concludes that, "[b]ased on the functioning of current generally available technology, prompts do not alone provide sufficient control." [3] Repeatedly revising prompts does not, by itself, establish authorship of the resulting expression under the Office's assessment of current generally available systems. [3] [4] The Office evaluates each work case by case. [3]

In Allen v. Perlmutter, an artist is challenging a registration refusal involving an AI-assisted image; as of our September 25, 2026 review, we could not verify a merits ruling. [5]

What can be protected

The Copyright Office's report identifies three kinds of human contribution that can support copyright in work involving AI: [3]

• Your own expression that survives in the output. If you create an original illustration and use AI

to modify it, copyright in your original human-authored illustration may remain; any claim to the AI-generated changes requires separate analysis. [3]

• Creative selection and arrangement. A human who creatively selects, coordinates, or arranges

AI-generated material may own that arrangement — not the individual AI-generated pieces. Selection, coordination, or arrangement of only two or three elements is not generally sufficient. [3]

• Creative modifications. Protection reaches the original human modifications, not automatically the

underlying AI output. [3] [4]

The Office's Zarya of the Dawn decision shows how this works: the Office retained registration for the human-written text and the selection, coordination, and arrangement of the comic book's elements, while excluding the individual AI-generated images from the claim. [4] [6]

What this means for a software company

Code. The authorities discussed here do not decide the copyrightability of a particular AI-generated code output. As an application of the Copyright Office's general principles, code generated by AI and accepted without sufficient original human expression may not itself qualify for copyright protection; the protectability of human-written code, human revisions, and any larger program is assessed separately. [1] [3] [8] Contracts and appropriate confidentiality measures can provide protections distinct from copyright.

Marketing copy and images. For a headline or illustration generated wholesale by AI, you may lack a copyright claim based solely on that AI-generated material. That does not mean the output is free of third-party rights, and it does not resolve contractual or trademark questions. Human-written copy and human edits can be protected to the extent they contain original human expression — and a short headline is not automatically protectable. [3]

Brand names and logos. Trademark law works differently. Trademark protection depends on whether a distinctive name or design identifies the source of goods or services through qualifying use — not on whether a human authored the artwork. [7] [10] An AI-generated logo may function as a trademark if it serves that source-identifying role and otherwise qualifies. Creation by AI does not clear conflicting marks, so clearance still matters.

Registering a copyright for work that includes AI

When seeking registration, applicants should disclose more-than-de-minimis AI-generated content, identify the human contribution, and exclude that AI-generated content from the claim. [4] Applicants should not list an AI tool or its provider as an author or co-author. [4]

Getting this wrong can have consequences. If essential information was omitted, the Office may take steps to cancel the registration, and a court may disregard a registration in an infringement case if the applicant knowingly provided inaccurate information that would have led to refusal. [4] The Office's stated route for correcting an already-issued registration is a supplementary registration. [4]

Contracts decide who holds what humans create

Copyright law addresses both protectability and initial ownership. Contracts can allocate or transfer rights where the law permits. [8]

• Employees. Copyrightable work an employee prepares within the scope of employment is generally a

"work made for hire," and the employer is considered its author unless the parties have expressly agreed otherwise in a signed writing. [8] A founder is not automatically an employee simply by founding the company. A separate signed assignment is valuable for ownership clarity outside the employee work-for-hire rule — the rule itself does not require one.

• Contractors. For a genuine independent contractor, a signed work-made-for-hire agreement works only

for a specially commissioned work within one of the categories listed in the statute; the writing alone cannot put other work into a category. [8] Otherwise, transferring copyright ownership generally requires a writing signed by the owner or an authorized agent. [9] Obtain a signed written assignment if the company is to own the contractor's copyright. Absent a qualifying work-made-for-hire arrangement or a signed transfer, the contractor may retain copyright in their original human-authored contribution; a license may instead give the company specified use rights. [8] [9]

• AI vendors. An enterprise plan or output-ownership clause can allocate whatever rights the parties

have; payment or contract language cannot make otherwise uncopyrightable AI-only expression copyrightable. Check the plan's actual terms — including whether others may receive similar outputs, and whether the provider offers any indemnity — rather than assuming.

A checklist for founders

• Inventory which AI tools your team uses for code, copy, and images.
• Keep records of human contribution — drafts, edits, design decisions, commit history.
• Put appropriate signed IP assignments in place with founders, employees, and contractors, tailored to

their roles and any pre-existing work.

• Review AI vendor terms on output ownership, input use, and indemnity.
• When registering a copyright, disclose more-than-de-minimis AI-generated material and claim only the

human authorship.

• Clear AI-generated brand names and logos before you rely on them.
• Don't overstate IP ownership in investor materials, diligence answers, or customer contracts — and

don't assume every AI-assisted asset is unowned, either.

Frequently Asked Questions

Sources

• Thaler v. Perlmutter, 130 F.4th 1039 (D.C. Cir. 2025), No. 23-5233
• Supreme Court Docket No. 25-449 (petition denied Mar. 2, 2026)
• U.S. Copyright Office, Copyright and Artificial Intelligence, Part 2: Copyrightability (Jan. 2025), pp. 7–8, 27
• Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16190, 16192–94 (Mar. 16, 2023)
• Allen v. Perlmutter, No. 1:24-cv-02665 (D. Colo.)
• U.S. Copyright Office, Zarya of the Dawn letter (Feb. 21, 2023)
• 15 U.S.C. § 1127
• 17 U.S.C. §§ 101, 201(a)–(b)
• 17 U.S.C. § 204(a)
• USPTO, "What is a trademark?"

This information is current as of September 2026.

This article is provided for general informational purposes only and does not constitute legal advice. Reading this article or contacting Accord & Shield Legal, PLLC does not create an attorney-client relationship. It does not address securities, tax, or litigation strategy. Some of the ownership and portability questions discussed above are unsettled or fact-dependent, and are identified as such rather than resolved. Laws, contracts, and applicable statutes can change, and their application depends on specific facts and jurisdictions. Do not act or refrain from acting based on this article without obtaining advice from qualified counsel regarding your circumstances. This material may be considered attorney advertising in some jurisdictions. Past results do not guarantee future outcomes.