The Ownership Brief
The authorship question is settled. The one that affects your business is not.
The Supreme Court left human authorship in place. What you can claim in AI-assisted work is the harder question.
Published August 12, 2026 · By Aurelia Mitchell Durant
On March 2, 2026, the Supreme Court declined to review Thaler v. Perlmutter, leaving in place the D.C. Circuit’s March 2025 holding that authors must be human beings and that human authorship is a bedrock requirement of copyright.
That resolves a question almost no business was asking. Few companies are trying to name a machine as the author of anything.
The question that does affect operating businesses is narrower and harder: when your content is produced with AI assistance, how much of it do you own, and can you tell which parts?
Where the line currently sits
Disclose the machine’s part, claim the human’s
The Copyright Office has been consistent. Registration applicants must disclose AI-generated material that is more than trivial in amount and must disclaim it, while the human contribution can be claimed. In the Zarya of the Dawn decision the Office registered the author’s text and her selection and arrangement of the images, and excluded the images themselves, which had been generated by Midjourney.
The Office’s January 2025 report on copyrightability went further. It concluded that prompts alone generally do not give a user sufficient control over the expressive elements of an output to make that output copyrightable, however elaborate the prompting. What can be protected is human-authored material, the creative selection and arrangement of AI-generated elements, and creative human modification of an output.
The practical translation: assistance is fine, and the more the human shapes the expression, the more there is to own.
Why this is a business problem
A thinner rights position than the size of the library suggests
A company producing content at volume with AI assistance may hold a more fragmented rights position than its content library implies. That shows up in three places.
- Licensing. You can only grant what you hold. A licence purporting to convey exclusive rights in material the licensor cannot claim is a promise waiting to be tested.
- Enforcement. For United States works, registration is generally a prerequisite to filing an infringement action, and the registration needs to be accurate about what is being claimed. A company that has not tracked human contribution may find it cannot make the representations a registration requires.
- Diligence. A buyer, investor, or major licensee will ask how the content was produced. The answer “we are not sure” is itself a finding.
There is a fourth exposure that is often larger than the first three, and it has nothing to do with copyright law.
Content, marketing, and licensing agreements routinely contain a representation that the company owns the material it is supplying and that the material does not infringe. That obligation is contractual. It applies whether or not copyright subsists in the work. A business that warrants ownership of material it cannot claim has created a problem that copyright doctrine will not solve, because the counterparty’s remedy comes from the contract.
Tool terms compound this. Providers differ on what rights a user receives in outputs, those terms change, and a provider cannot grant rights it does not itself hold.
The discipline
The recordkeeping has to happen at production time
Reconstructing who contributed what, two years later, across a team that has partly turned over, using tools whose terms have since been revised, is unreliable work. The question is always asked later than the moment it could have been answered easily.
The practical test
Four things to put in place this quarter
- Decide which content carries commercial weight. Not everything needs this treatment, and treating everything as critical is how the discipline collapses.
- Record the human contribution as it happens: the original expression, the selection, the arrangement, the substantive edits. A short production note attached to the asset is enough.
- Keep a copy of the tool terms in force on the date of creation, since the version that governed your work is the one that matters.
- Read the ownership and non-infringement warranties in your customer, licensing, and agency agreements, and compare them against what you could actually demonstrate if asked.
The companies that will be in the strongest position are not the ones that avoided these tools. They are the ones that used them and kept track.
The Ownership Layer
The volume of what a company produces has stopped being evidence of what it owns.
What closes that distance is a record made at the time the work was done, not an account assembled once someone asks.