AI-Generated Content and Copyright: What Businesses Need to Know in 2026

Rosenthal IP LAW

If your team has been leaning on AI tools to generate blog posts, product images, or social content, here's a question worth asking before you publish the next one: who actually owns that content? For a lot of businesses, the honest answer is nobody, and that's a bigger problem than it sounds. 


The Basic Question


The U.S. Copyright Office has been studying this since 2023, collecting public input and issuing guidance in stages. Its conclusion has stayed consistent throughout: copyright protection requires human authorship, and that requirement hasn't changed just because the tool doing the work became a lot more sophisticated.


The case that settled this at the federal level is Thaler v. Perlmutter. A computer scientist generated an artwork entirely through an AI system and applied to register it, listing the AI system itself as the author. The Copyright Office refused registration, the D.C. Circuit Court of Appeals upheld that refusal in 2025, and on March 2, 2026, the Supreme Court declined to hear the case at all. That left the ruling standing: human authorship is a "bedrock requirement" of copyright, and content generated without meaningful human involvement simply falls outside it.


The harder, more practical question, one the Copyright Office has addressed in detail, is what happens when a human is the one typing the prompts. Its answer: prompts alone, no matter how detailed, generally don't make the person who wrote them the "author" of the output. A prompt functions more like an instruction than an expression, since the AI system is still the one making the real expressive choices, what the final image looks like, how a sentence is phrased, in between the prompt and the result.


A step-by-step decision chart walking through how much of an AI-assisted work is protectable, based on the level and nature of human contribution.

Walking Through It


The flowchart above reflects a few key distinctions the Copyright Office has drawn, each worth understanding on its own:


  • Purely AI-generated content, no meaningful human input, not protectable. If a prompt goes in and an output comes out with nothing else added, there's no copyright to claim, for anyone.
  • AI used as an assistive tool — fully protectable, the normal way. If your team uses AI to edit, enhance, or refine something a person already created, rather than to replace their creative judgment, the resulting work is treated like any other human-authored work.
  • A human's original input feeds into AI output — the human's original contribution keeps its own protection. If someone creates original artwork or text and then runs it through an AI tool to modify or extend it, that original expression doesn't lose its copyright just because AI touched it afterward.
  • Selecting and arranging AI-generated material — can be protected as a compilation. Deliberately curating and organizing a set of AI-generated elements into something cohesive can itself be a protectable creative act, even if the individual AI-generated pieces aren't. This is exactly what happened in one real registration case, Zarya of the Dawn, a comic book combining AI-generated images with human-written text: the Copyright Office found the overall compilation protectable, while the individual AI images were not. 
  • Substantial human modification of AI output — protectable to the extent of the changes. If a person reworks AI-generated material enough that the changes themselves reflect real creative judgment, those specific modifications can be copyrighted, even though the unmodified AI output underneath still isn't. 


One more detail worth knowing: if you're registering a work that includes AI-generated material, the Copyright Office requires you to disclose that and describe the human author's actual contribution. Registrations only cover the human-authored portion, and getting this disclosure wrong can put the validity of the registration itself at risk.

What This Means for Your Business 


Treat purely AI-generated output, generated from a prompt with no further human work layered on, as unprotected. Keep records of what a person actually selected, edited, or arranged, since that documentation is what determines whether there's anything protectable at all. If you're registering AI-assisted content, disclose the AI-generated portions accurately. And remember that your ability to commercially use AI output is often governed by the AI platform's own terms of service, separately from anything copyright law covers. 


This is still a developing area, and the Copyright Office has said it will keep monitoring the technology as it evolves. But the core rule, as it stands now, is settled: no meaningful human authorship means no copyright.


If your business is relying on AI-generated content and isn't sure what's actually protected, or how to document your process so that it is, that's worth sorting out before you build a brand asset around something you don't actually own.


Contact Rosenthal IP Law today to schedule a consultation on protecting the content your business is creating, AI-assisted or otherwise.



5 Common Trademark Mistakes Small Businesses Make (and How to Avoid Them)

By Larry Rosenthal • September 23, 2026
Urgent

Trademark Infringement: What to Do If Another Business Uses Your Brand Name

By Larry Rosenthal • September 14, 2026
Say you run a coffee shop called "Morning Ritual," and then a new café across town opens up as "Morning Rituals." Customers start mixing the two up online, tagging the wrong shop in reviews, showing up at the wrong location for a promotion you never ran. That mix-up isn't just annoying; it's the exact kind of consumer confusion trademark law exists to prevent. The question is what to actually do about it, and that depends on getting a few things right before you pick up the phone. Step One: Make Sure It's Actually Infringement Not every similar name is a legal problem. Before doing anything else, it's worth asking: Does the other mark sound, look, or read similarly to yours? Is it being used for the same or related goods and services? Would a typical customer plausibly confuse the two? If those answers point toward "yes," you likely have a legitimate case. If the businesses operate in unrelated industries, or serve genuinely separate markets, there may be no infringement at all, and pursuing it burns time and legal fees for nothing. Build Your Record First Once you're confident it's a real conflict, start collecting proof before reaching out: screenshots of their website, social posts, packaging, or ads, etc. Make sure you record the date you captured the evidence and save it. If this ends up going further than a polite email, you'll want that record intact. (If you think this might go to court, an attorney should forensically capture this information.) The Cease-and-Desist Letter Comes Next This is the standard opening move in nearly every trademark dispute. A good cease-and-desist letter identifies your registered mark, explains specifically why the other party's use creates a problem, and requests that they stop, typically within a set timeframe. Keep the tone firm but professional rather than combative. It's entirely possible the other business had no idea your mark existed when they picked their name, and a measured letter resolves more disputes than an aggressive one. Attorneys generally draft these rather than business owners doing it solo, mostly because getting the legal language and scope right matters if the letter ends up as evidence later. If the Letter Doesn't Land Sometimes it works. Sometimes it's ignored entirely. When that happens, litigation becomes the real option. To win a trademark infringement suit, you typically need to establish three things: that you hold a valid registered mark or are otherwise the Senior User (i.e., have earlier rights in the trademark than the other party), that the other party is using an identical or confusingly similar mark on similar goods or services, and that the use is actually causing confusion or diluting your brand’s distinctiveness. Courts don’t take a plaintiff’s word for that confusion, either. They apply structured, multi-factor tests to evaluate it. The Second Circuit's approach, first laid out in Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492 (2d Cir. 1961) , weighs things like the strength of your mark, how similar the two marks actually are, how close the products or services sit to each other, and any evidence of real-world confusion among customers. Most circuits apply some version of this multi-factor analysis, and while the specific factors shift slightly by jurisdiction, the underlying question stays the same everywhere: would a reasonable consumer actually be confused? What Winning Actually Gets You If a court sides with you, the most common outcome is an injunction, a binding order requiring the other business to stop using the mark. Depending on how the infringement happened and how deliberate it was, courts can also award financial damages covering lost profits and possibly legal costs, and in cases involving outright counterfeiting, criminal penalties can come into play too. Know When to Let It Go Worth remembering: some overlap genuinely isn't infringement. Comparative advertising and legitimate news reporting can qualify for fair use protection, and two businesses with similar names in clearly distinct markets sometimes just coexist without either side having a real claim against the other. If you're staring down a name conflict and can't tell whether it's worth pursuing, that's exactly the kind of question worth getting a real answer to before spending money on a letter or a lawsuit. Contact Rosenthal IP Law today to schedule a consultation, and let's figure out where you actually stand.
Clock

The Hidden Cost of Waiting Too Long to Register Your Trademark

By Larry Rosenthal • August 28, 2026
I often hear a common refrain: “I've been using this name for years, and nobody’s said anything, so I’m probably fine.” I understand that logic. But eventually, I get a phone call from that same business owner, and it is rarely a happy one. Another situation companies face is where they wait too long to file an application to register their trademark, only to find out that another company (that started using the same or a similar trademark at a later date) already filed an application. Common Law Rights Only Get You So Far Using a trademark does grant what are known as common law trademark rights. The problem is that these rights are geographically limited; they only protect you in the specific market where you’ve been doing business, not across the entire country. A federal registration with the USPTO provides a presumption of nationwide priority, the right to use the ® symbol instead of just ™, and a much stronger position in case of a dispute. While waiting to register a trademark does not negate your common law rights, it does leave the door open for someone else to claim rights in that same or a similar trademark elsewhere. What This Actually Costs You Filing a federal trademark application costs a few hundred dollars per product or service. This is a small price compared to the expenses of a forced rebrand, which includes new signage, packaging, and marketing, as well as the awkward task of explaining the name change to existing customers. Additionally, legal expenses incurred from responding to cease-and-desist letters can turn into an expensive procrastination habit. There’s also a quieter cost that often goes unbudgeted: lost search rankings, decreased web traffic, and a weaker position when trying to address copycat issues online. An unregistered mark leaves you with far fewer tools for enforcement. Your Filing Date Is Your Friend Here’s an unexpected advantage: your legal priority is established on the day you file, not when you receive the registration certificate (which can take 12 months or more, given USPTO timelines). Filing locks in your position in line nationwide. Generally, everyone who files after you is already behind you, registration or no registration. Therefore, it’s legally counterproductive to say, “I’ll wait until things calm down.” Don’t Let “Later” Become “Too Late” If a trademark registration is on your to-do list alongside “organize the garage,” I recommend moving it to the top of your priority list. Filing early is cheaper, stronger, and considerably less dramatic than waiting. If you’re a business owner seeking a trademark attorney or are currently involved in a dispute, Rosenthal IP Law is a trademark law firm that handles these matters daily, including application filings, oppositions, cancellations, and everything in between. Contact Rosenthal IP Law today to schedule a consultation on registering your trademark before someone else acts first, leaving you in a weaker position.