The Copyright Office has remained strict in its interpretation that without a demonstrable form of human agency in the authorship of a work, that work will not be deemed eligible for copyright protection. However, as technology evolved, the widespread usage of generative AI in the creation of “art” has forced the question: where is the line between a human using a tool and a machine creating?
1. AI Art Tools
There are many AI art tools on the market right now, but some of the most popular are Midjourney, OpenAI GPT-Image-1 (successor to DALL-E), and Google Nano Banana 2.
Midjourney
A generative AI tool in which a prompt is typed and the AI generates four images based on that prompt, that can then be refined.
OpenAI GPT-Image-1
A generative AI tool which is great for complex instructions in the prompt the user enters prior to refinement.
Nano Banana 2
The newest generative AI tool, which draws from the web for references in its creation of an image based upon a prompt.
2. Artists Using AI
The case of Kris Kashtanova, the creator of the graphic novel Zarya of the Dawn, is a landmark case for AI artists. Kashtanova was denied copyright protection due to her usage of Midjourney.
The Copyright Office later granted limited registration for the text and unique layout of her work, but not the images. The Office ruled the text and layout, as it was arranged by a human, were considered human authorship — while the images were not deemed copyrightable due to being generated by a machine.
Today, many artists have begun to use AI but have gotten around the human authorship component using a “hybrid” model. Refik Anadol — an artist famous for “data paintings” — creates immersive installations via large nature models and data visualization. He was able to gain copyright protection because his studio maintains copyright over the custom architecture and video installations as compilations. This makes his work more of a compilation of human elements rather than a machine-made creation.
3. What This Means for the Future
While AI can create breathtaking visuals, lack of recognized human authorship creates an all-time struggle for creators. For instance, if Claude Monet were born today and used generative AI to create his work, would it evoke the same emotions?
One cannot truly comprehend the human element of his process: the hours spent outdoors catching the sun at the perfect angles, his eyes carefully scrutinizing his garden, and the physical toll of the sun bearing down on his body. Can AI-generated art ever truly possess human authorship — and what is it that makes us uniquely human when we create?
In the end, we are left with an AI dilemma. On one side is an artist who spends hundreds of hours tweaking their artwork with AI without the guarantee of legal protection. On the other is a computer program that may draw from the work of others without providing the lived experience that has defined “art” for centuries.
As the legal landscape continues to shift, we must ask ourselves: if the human element is removed, is the result still a masterpiece, or merely a calculation?
Sources & Further Reading
Legal Precedents
Supreme Court Update: Thaler v. Perlmutter, No. 25-449 (cert. denied March 2, 2026). Upholds the requirement for human authorship.
Copyright Office Report: Copyright and AI, Part 2: Registration Guidance (January 2025). View Report.
The “Hybrid” Rule: U.S. Copyright Office, Zarya of the Dawn Cancellation Decision (Feb. 21, 2023).
AI Technology References
Google Nano Banana 2: “Gemini 3.1: Introducing Nano Banana 2 for Creators,” The Keyword (Feb. 26, 2026).
OpenAI GPT-Image: “From DALL-E to GPT-Image: The Future of Native Multimodal Design,” OpenAI News (Dec. 16, 2025).
Midjourney: “V8 Alpha Release Notes,” Midjourney Community Feed (Mar. 17, 2026).