AI & COPYRIGHT LAW: USING AI MODELS IN CONNECTION WITH YOUR BOOK

Many people have asked me to give them a summary of how to protect their books/manuscripts if they use AI Models in connection with their manuscript/book.  The following FAQ should answer most of your questions.

First, you need to understand the Basic Rule of the Copyright Act.

BASIC RULE. The Copyright Act protects textual works and “expression” that is created by humans only (not any other source such as monkeys or AI Models).  The U.S. Copyright Office has differentiated between the use of AI Models as an assistive tool vs a generative tool.  

Q: WHAT DEFINES ASSISTIVE AI USE?

A: The distinction between assistive and generative AI use hinges on whether the AI-generated material would be eligible for copyright protection if a human had created it.  To make this determination, the U.S. Copyright Office applies the Supreme Court’s standard from Feist Publications, which requires “independent creation plus a modicum of creativity”.

Examples of assistive AI use include:

• Checking spelling and grammar.
• Formatting text, inserting page numbers, or generating a table of contents.
• Generating brief quotes or short phrases.

Because these contributions do not meet the legal threshold for copyrightability, you do not need to disclose or disclaim assistive AI use on your copyright application.

Q: WHAT DEFINES GENERATIVE AI USE?

A: AI use becomes generative when the AI generates expressive elements that would satisfy the standard for copyrightability if they had been created by a human. When your work contains an appreciable amount of AI-generated content, that content is not protectable under the Copyright Act and you have a strict duty to explicitly disclose and exclude that AI-generated material on your copyright application.

Examples of generative AI use include:

• Incorporating a significant amount of AI-generated text or content into a manuscript with minimal human revision.
• Using AI to generate the expressive elements of a story, such as full plotlines or characters.

Q:  HOW CAN AN AUTHOR USE AI AND CLAIM COPYRIGHT PROTECTION FOR ALL OF THE TEXT/MANUSCRIPT?

A: Protectable human creative control exists when a human author translates an idea into a fixed, tangible expression, actually forming the “traditional elements of authorship” rather than letting a machine determine the expressive elements. While simply entering text prompts into an AI system is not considered protectable human creative control over the resulting output, there are several specific ways human authors can exercise protectable human creative control over literary works when interacting with AI tools:

• Brainstorming and Ideation: You can use AI purely as a tool to brainstorm plot ideas, generate character names, create chapter titles, or build a preliminary outline. If you use the AI solely for idea generation and write the actual text of the book yourself without incorporating the AI’s generated language, you maintain full protectable authorship over the work.

• Proofreading and Editing Original Drafts: You can write your own original draft of a manuscript and feed it into a language model to check spelling and grammar, provide recommended edits, insert page numbers, or generate a table of contents. Because this type of AI assistance is considered assistive, you retain full copyright over the book, and your creative labor in writing the original draft and further editing the AI’s suggestions is fully protectable.

• Complete Rewriting of AI-Generated Text: If you use AI to develop story lines, flesh out characters, or generate initial draft text, you can establish human authorship by completely rewriting that material in your own original voice before adopting it into your final manuscript.

• Substantial Revision of AI Output: If you incorporate AI-generated text into a work (such as a book chronicling communications between a human and an AI), you can claim protectable authorship over the specific human-authored revisions, edits, and modifications you make to the AI’s responses.

Compilation Claim. You can also copyright your manuscript containing expression generated by AI by claiming “Selection, Coordination, and Arrangement”. You can claim protectable human authorship by creatively selecting, coordinating and arranging your own original text alongside AI-generated elements.  To qualify for registration under this rule, an author must prove they performed three distinct mental acts:

• Selection: The creative choice of which specific AI-generated text to include and which to exclude. This selection must demonstrate a “spark of creativity” and cannot be purely obvious or mechanical (like alphabetizing).

• Coordination: Establishing the logic, flow, or connective tissue between the selected text to create a specific narrative arc or logical argument. The human author must be the “Master Mind” deciding how the elements relate to one another.

• Arrangement: The physical or temporal ordering of the elements in the final product, such as the specific layout of a book or the sequence of AI-generated images in a graphic novel.

• How to Register a Compilation:  You must use the Standard Application to check the “Material Excluded” box, disclaiming the individual AI-generated elements. You then explicitly claim the “Selection, coordination, and arrangement of AI-generated text” as your original human authorship.

• Important Limitation: It is crucial to understand that a compilation claim only provides a “thin” copyright. It solely protects your specific structure and sequence. Because the underlying AI-generated pieces remain in the public domain, if someone else takes exactly the same AI text(s) and arranges them in a different way, they may not be infringing on your copyright.

Q: HOW CAN I PROVE HUMAN AUTHORSHIP WHEN USING AI TOOLS?

A: To prove human authorship when using AI tools, you must maintain comprehensive documentation demonstrating that you exercised “ultimate creative control” over the expressive elements of the work. Because AI prompts are unprotectable ideas or instructions rather than authorship, you need to carefully record your creative process to show that the AI acted merely as an assisting instrument.

You can prove your human authorship by collecting and organizing the following documentation:

• Document the specific AI models used: Keep a record of the AI models you utilized, including the version numbers, where you accessed them, and the dates you used them. It is also helpful to document the known capabilities of the model, such as whether it generates wholly new content or is simply used as a “plugin” to edit or enhance existing human-created work.

• Log all prompts and user-controllable parameters: Record the exact prompts you used, especially if you engaged in an iterative “trial-and-error” process to refine the output over time. You should also record any user-controllable parameters you adjusted, such as seed values, the number of steps, or sampler selections.

• Retain your original expressive inputs: If you fed your own original, human-authored material into the AI to be modified (such as drafts of the manuscript), keep copies of those original files. Proving human authorship is much stronger when your own original work is clearly perceptible in the final AI-generated output.

• Track your post-generation modifications: Document exactly how you modified, edited, selected, coordinated, or arranged the AI’s output after it was generated. Retain examples of both the raw, un-modified AI output and your final, human-modified version to clearly demonstrate the extent of your creative labor.

• Create an “AI Suggestion” or “Rejection” Log: Keep a detailed record of the AI’s raw outputs alongside the specific sections you explicitly discarded. This log should specifically note why you rejected certain AI suggestions—for example, because the text “didn’t sound like me,” failed to match your unique literary voice, or contained algorithmic “hallucinations” that deviated from your original mental conception.

• Quantify Your Rejections: Keep track of the volume of deleted content. Showing that you rejected a significant portion of what the AI generated (e.g., deleting 40% of the AI’s text) serves as powerful forensic evidence that you maintained tight creative control over the traditional elements of authorship.

• Save Iterative Drafts: Maintain copies of your manuscript at various stages of the writing process. You should keep the “raw” human draft, the version containing AI suggestions, and the final “Manual Revision” draft where you edited the AI-generated text. This establishes a clear “Creative Trail” and shows the examiner the exact difference between the AI’s initial output and your final, curated expression.

• Document “Discarded/Entirely Rewritten” Ideation: If you use AI strictly for brainstorming, plotting, or outlining, save the raw outputs to prove that they were either entirely discarded or completely rewritten by hand. This confirms the AI was only used for non-expressive ideation and that the AI-generated text did not make it into the final product.

• Save metadata and system logs: If the AI model provides metadata or logs regarding the generation process, save this information. While metadata alone does not prove creativity, it helps establish a timeline of how you iteratively used the tool to reach your final creative vision.

• Provide extensive details in your copyright application: When applying for registration, use the “Note to Copyright Office” field to explain your creative process in detail. Provide information about the model used, your prompts and parameters, and explicitly focus on explaining the extent of your human creativity, such as the modifications you made or the trial-and-error effort involved. Avoid phrasing that suggests passive behavior (e.g., simply stating you “used an AI model to generate text”).