Can Congress Fill the Cox v. Sony-Sized Hole in Copyright Law?

From time to time, traditionally no more than on an annual basis, the head of an agency will be called to appear before its congressional authorizing committee to provide an update on the state of the agency and answer questions on the pressing issues of law and policy in his or her field. On May 12, 2026, the Register of Copyrights at the U.S. Copyright Office (Office), Shira Perlmutter, appeared before the U.S. Senate Committee on the Judiciary Subcommittee on Intellectual Property for such an "Oversight Hearing."

Register Perlmutter covered topics ranging the Office's recently proposed new fee schedule to operational updates on the Copyright (Small) Claims Board to the historical rationale for the Office's location within the legislative, instead of the executive, branch of government. But the bulk of the discussion – and interest from senators on the dais – surrounded two topics: 1) artificial intelligence (AI) and copyright law and 2) the recently decided Cox v. Sony U.S. Supreme Court decision.¹ Regarding the Cox case, the U.S. Congress may have some work to do.

Regarding AI and copyright law, the Register separated her comments on the copyrightability of AI-generated works from those on AI output from those on AI input.

• Copyrightability: Copyrightability of AI-generated works requires human authorship, said the Register, but she further explained that human selection, coordination and arrangement can qualify as authorship. She noted that the Office has registered to date more than 7,000 claims that include AI-generated materials where those materials have been disclaimed in accordance with the Office's registration guidance.²
• AI-Generated Outputs: Regarding "deepfakes," Register Perlmutter recalled for the senators that in Part 1 of the Office's report on Copyright and Artificial Intelligence³ – the report focused on digital replicas – the Office concluded "that new federal legislation is urgently needed." Sen. Marsha Blackburn (R-Tenn.) highlighted the bipartisan NO FAKES Act⁴ (co-sponsored by several senators also on the subcommittee) and the need for a unified federal framework to protect individuals from the economic and reputational harm of unauthorized deepfakes. The Register agreed, noting that individuals are being harmed "every day" by the misuse of their likeness.
• Inputs to AI: On the issue of copyrighted works being used to train AI models, however, the Register's recommendation was not so definitive. She noted the flexibility and fact-specific nature of the fair use doctrine that has resulted in unpredictable and divergent rulings by the courts. She also noted that licensing markets currently developing may reduce uncertainty. Sen. Thom Tillis (R-N.C.) noted concerns with a "wait-and-see" approach where Congress defers legislation until the courts first decide, noting that doing so could lead to a similar problem in copyright law as currently exists in patent law regarding a patent eligibility subject matter standard narrower than Congress initially intended. There is no question that the U.S. is in an AI race with China, he said, but it should not be a race to the bottom and must protect copyright owners. Though Register Perlmutter agreed with protecting copyright owners, she urged Congress to wait for the right time and the right need for legislation before legislating. Until the fair use doctrine is unable to deal with some of the issues involved with AI training, particularly given the difficulty of crafting language that could work in Section 107 of the Copyright Act, she said, legislation may be premature.

The Register was, however, more bullish on the ability of Congress to correct the copyright laws regarding contributory infringement. When questioned by Sen. Mazie Hirono (D-Hawaii) about that balance struck in the Digital Millennium Copyright Act and whether Cox v. Sony altered that balance, the Register characterized Cox v. Sony as leaving "a bit of a hole in the law where there used to be the possibility for contributory infringement." This may be a moment for Congress to codify the doctrine of contributory infringement or to directly address online infringement by online service providers. This could also be done through no-fault injunctions, the Register said.

For more information about what the Supreme Court holding in Cox v. Sony means for tech providers and copyright owners, see our previous alert.

For more on how Holland & Knight can help you on issues of intellectual property law and policy, contact this article's author.

The full video of the hearing can be found online.

Notes

¹ See Cox Communications, Inc., v. Sony Music Entertainment, 146 S. Ct. 959 (2026).

² For further information on the copyrightability of AI generated works, see U.S. Copyright Office, Copyright and Artificial Intelligence, Part 2: Copyrightability (2025).

³ U.S. Copyright Office, Copyright and Artificial Intelligence, Part 1: Digital Replicas (2024).

⁴ S. 1367, Nurture Originals, Foster Art, and Keep Entertainment Safe Act of 2025.