Human authorship is now the deciding factor in whether AI-generated art receives copyright protection, and the legal system is finally developing clearer rules for what counts as sufficient human creativity. A new analysis from the New York State Bar Association examines landmark copyright cases and U.S. Copyright Office guidance to establish how much human involvement is needed when artists use tools like Midjourney to create digital works.

What Exactly Counts as Human Authorship in AI Art?

The question sounds simple but has proven surprisingly complex. In 2025, the U.S. Copyright Office released its highly anticipated Copyright and Artificial Intelligence Guidance Report, which established several key conclusions about when AI-generated works deserve legal protection. The core principle is straightforward: purely machine-generated content cannot be copyrighted. But the moment a human adds meaningful creative input, the calculus changes.

The Copyright Office concluded that using AI tools to assist rather than replace human creativity does not affect copyright protection eligibility. This distinction matters enormously for artists experimenting with Midjourney and similar platforms. The guidance also clarified that copyright protects the original expression created by a human author, even when the work includes AI-generated material, but copyright does not extend to purely AI-generated content or material where there is insufficient human control over the expressive elements.

How Do Courts Actually Evaluate Human Contribution?

Two landmark cases illustrate how courts are drawing these lines. Steven Thaler attempted to register artwork titled "A Recent Entrance to Paradise," which was generated autonomously by his AI program called Creativity Machine. Thaler argued the work should qualify as a "work-for-hire" since he owned the machine. The U.S. Copyright Office denied his application, and courts ultimately upheld that decision, ruling that the Copyright Act requires all eligible works to be authored in the first instance by a human being. The Supreme Court declined to review the case, making the decision final.

A second case involved Jason Allen, who won the Colorado State Fair art contest with "Théâtre D'opéra Spatial," created using Midjourney. Allen's situation was markedly different. He explained that he used a series of prompts, adjusted the scene, selected portions to focus on, dictated the tone of the images, and used Adobe Photoshop to edit the final result. Allen experimented with over 600 prompts before arriving at the text prompt that ultimately generated the artwork. This level of iterative human involvement presents a stronger case for copyright protection than Thaler's autonomous machine approach.

Steps to Strengthen Your Copyright Claim When Using AI Art Tools

• Document Your Creative Process: Keep detailed records of the prompts you write, the iterations you test, and the reasoning behind your choices. The more evidence you have of deliberate creative decision-making, the stronger your authorship claim becomes.
• Make Significant Post-Generation Edits: Use tools like Photoshop or other image editors to modify, refine, or enhance the AI-generated output. Courts recognize that creative selection, coordination, arrangement, and modification of outputs constitute human authorship worthy of protection.
• Demonstrate Intentional Creative Control: Show that you exercised meaningful control over the expressive elements of the final work. This includes selecting which generated variations to use, deciding on composition, adjusting tone, and making deliberate choices about what to include or exclude.

The Copyright Office's guidance makes clear that prompts alone do not provide sufficient control to establish authorship. Simply typing a description into Midjourney and accepting the first result will not meet the legal threshold. However, the iterative process of refining prompts, selecting among multiple outputs, and making creative modifications does constitute the kind of human authorship that copyright law protects.

The legal framework emerging from these cases and guidance documents suggests that copyright protection for AI-assisted art exists on a spectrum. At one end, purely autonomous AI generation receives no protection. At the other end, human artists who use AI as a tool while maintaining creative control over the final expression can secure copyright protection for their work. The middle ground, where most Midjourney users operate, requires demonstrating that human creativity shaped the final product in meaningful ways.

The Copyright Office concluded that questions of copyrightability and AI can be resolved pursuant to existing law without legislative change, and that the case has not been made for additional copyright or special protections for AI-generated content. This means artists and creators must work within the current framework, documenting their creative contributions and demonstrating human authorship through their process and modifications.

For creators using Midjourney and similar tools, the practical implication is clear: your copyright protection depends on how much of yourself you put into the work. The more you iterate, refine, edit, and deliberately shape the output, the stronger your legal claim becomes. As this legal landscape continues to develop through case-by-case analysis, maintaining detailed records of your creative process has become as important as the final image itself.