The U.S. Copyright Office currently refuses to register works created entirely by AI tools like Midjourney, arguing that copyright law requires human authorship as its foundation. This policy has sparked a legal battle that could reshape how creators, companies, and courts understand ownership in the age of generative artificial intelligence.

Why Can't Midjourney Images Get Copyright Protection?

The Copyright Office's stance traces back to a landmark case involving Kristina Kashtanova, who in September 2022 tried to copyright a graphic novel called "Zarya of the Dawn." The images were generated using Midjourney, but the Copyright Office rejected her application, stating the work lacked "enough original human authorship to sustain a claim to copyright." Kashtanova argued she had guided the AI through text prompts, but regulators disagreed.

The reasoning behind this decision runs deep. Courts have long held that human involvement is central to authorship under copyright law. The Copyright Office's own 2021 guidelines explicitly list uncopyrightable works as including "a photograph taken by a monkey" and "a song naming the Holy Spirit as the author of the work." The logic is straightforward: if a non-human entity creates something, copyright law doesn't recognize it as owning intellectual property.

A more recent case, Thaler v. Perlmutter, tested this principle further. Dr. Stephen Thaler listed his "Creativity Machine" as the sole author of a visual artwork titled "A Recent Entrance to Paradise" and claimed copyright under a work-made-for-hire theory. Both the district court and the U.S. Court of Appeals for the District of Columbia Circuit rejected his claim in March 2025, affirming that an AI system cannot be an author under copyright law.

Where's the Line Between Human and Machine Creativity?

Here's where things get complicated. The Copyright Office acknowledged in the Kashtanova case that Midjourney's unpredictability makes it fundamentally different from traditional creative tools. The office noted that "while additional prompts applied to one of these initial images can influence the subsequent images, the process is not controlled by the user because it is not possible to predict what Midjourney will create ahead of time." In other words, because the software's output cannot be reliably predicted from human inputs, the human user isn't truly authoring the work.

But the courts haven't drawn a clear line for how much human involvement is actually required. The D.C. Circuit in Thaler deliberately sidestepped this question, focusing narrowly on cases where AI is the sole author. The court did clarify one important point: the human authorship requirement "does not prohibit copyrighting work that was made by or with the assistance of artificial intelligence." The key is that the author must be human, not the machine itself.

This leaves creators in a gray zone. If you use Midjourney to generate an image and then heavily edit, arrange, or modify it, you might have a copyright claim. But the exact threshold remains undefined, and no court has yet provided a bright-line test for determining when human involvement crosses the line from insufficient to sufficient.

How Are Legal Experts Proposing to Fix This?

Legal scholars have suggested several pathways forward. Some argue that existing copyright law already contains a solution: the work-made-for-hire doctrine. Under this framework, when an employer commissions work, the employer owns the copyright, not the creator. The theory goes that if a human employer commissions an AI system to create something, the employer should own the resulting copyright.

However, courts have rejected this approach so far. The Thaler district court held that because copyright requires a human author, and AI systems aren't human, "the work at issue did not give rise to a valid copyright upon its creation." Without a valid copyright in the first place, property cannot be transferred to an employer.

This has led legal experts to call for legislative reform. Both scholars Giovanni LoMonaco and Gia Jung have argued that Congress should amend Section 101 of the Copyright Act to explicitly include works generated by computers without human authors in the definition of an "employee" for work-made-for-hire purposes. In other words, they want lawmakers to rewrite the rules so that AI-generated works can be owned by the humans or companies that commissioned them.

Steps Creators Can Take to Protect AI-Generated Work

• Document Your Creative Process: Keep detailed records of every prompt, iteration, and decision you made while using Midjourney. The more evidence you have of human direction and control, the stronger your argument for authorship becomes.
• Combine AI Output With Original Work: Edit, modify, or arrange AI-generated images significantly before publishing. Courts are more likely to recognize copyright in works that blend AI generation with substantial human creative input.
• Monitor Legislative Developments: Stay informed about proposed copyright reforms at both state and federal levels. New laws may soon clarify ownership rights for AI-assisted works, and understanding these changes will help you protect your creations.
• Consider Contractual Protections: If you're using Midjourney commercially, review the platform's terms of service and consider additional legal agreements that specify ownership and usage rights for generated content.

What Does This Mean for the Creative Industry?

The legal uncertainty surrounding Midjourney and similar tools has broader implications for the entertainment industry. As generative AI becomes embedded in everyday creative workflows, fundamental questions about copyright ownership, the legality of using copyrighted works to train AI models, and the adequacy of existing laws to protect artists have moved to the forefront of legal discourse.

The current situation creates a paradox. Millions of creators are using Midjourney and other AI image generators, yet the legal system hasn't definitively answered whether they can own what they create. This uncertainty could chill investment in AI creative tools, discourage artists from using them, or lead to costly litigation as creators and companies clash over ownership rights.

Dr. Stephen Thaler, in his petition for certiorari to the Supreme Court, argued that denying copyright to AI-generated works would discourage investment in AI development and harm creative industries. Whether the Supreme Court takes up this case remains to be seen, but the question itself reflects the stakes involved. The answer will likely shape how creators, platforms, and companies approach AI-assisted creativity for years to come.