Disclaimer: No robots were consulted in the writing of this article.
The U.S. Copyright Office has published copyright registration guidance on works containing material generated by artificial intelligence technology. The statement of policy clarifies its practices for examining and registering works that contain AI contributions and describes how the Office applies copyright law’s human authorship requirement.
“In the Office’s view, it is well-established that copyright can protect only material that is the product of human creativity. Most fundamentally, the term “author,” which is used in both the Constitution and the Copyright Act, excludes non-humans. … When an AI technology determines the expressive elements of its output, the generated material is not the product of human authorship. As a result, that material is not protected by copyright and must be disclaimed in a registration application.”
The guidance comes amidst an explosion of AI software and generative technologies, such as ChatGPT, Jasper, AI Writer, among others, that research vast quantities of human-authored works across the Internet to generate content into expressive works in the speed of minutes based on prompts and keywords. The output is typically textual, visual, and/or audio.
Human Creativity Protected; AI Technology Not Protected
Copyright applications will be judged case-by-case, but essentially any AI contributions to a work are not protected by copyright. So, if you enter in a prompt on AI software and then use exactly what the program generates as your own work, that material cannot be copyrighted because “traditional elements of authorship are determined and executed by the technology — not the human user.”
“Users do not exercise ultimate creative control over how such systems interpret prompts and generate material,” the guidance states. “Instead, these prompts function more like instructions to a commissioned artist — they identify what the prompter wishes to have depicted, but the machine determines how those instructions are implemented in its output.”
In 2018, the Copyright Office denied a visual work the applicant described as “autonomously created by a computer algorithm running on a machine.” The work could not be registered because it was made “without any creative contribution from a human actor.”
However, if the human author contributes original and creative elements to the work, that portion can be considered for copyright protection.
For example, the U.S. Copyright Office reviewed the comic book Zarya of the Dawn. It contained human-authored text combined with images generated by an AI service, Midjourney. Originally, the entirety of the book was granted protection, but after review, the Office revoked protection earlier this year and issued a new copyright covering only the text and the arrangement, excluding the images generated by Midjourney.
The statement of policy also provides guidance on how an applicant should seek to register works containing both human authorship and AI generated content.
Applicants must complete a Standard Application, identify the author(s) and include in the “Author Created” field a description of the authorship contributed by the human. Applicants should not list an AI technology as an author or co-author.
The guidance further states that AI-generated content that is more than de minimis (of little importance) should be described in the “Limitation of the Claim” section. There is also a requirement for applicants and registrants who failed to previously disclose the AI-generated content in their works to the Copyright Office to take corrective actions.
Addressing the Human Authorship Requirement
How does the Copyright Office differentiate human authorship from AI contributions? The guidance states it’s case by case but has published some boundaries for registrants to consider.
The guidance states: “The Office will consider whether the AI contributions are the result of ‘mechanical reproduction’ or instead of an author’s “own original mental conception, to which [the author] gave visible form. The answer will depend on the circumstances, particularly how the AI tool operates and how it was used to create the final work.”
Therefore, a human may select or arrange AI-generated material in a sufficiently creative way that “the resulting work as a whole constitutes an original work of authorship. … Copyright will only protect the human-authored aspects of the work, which are independent of and do not affect the copyright status of the AI-generated material itself.”
The guidance clarifies that technological tools have and can continue to be used as part of the creative process: “Authors have long used such tools to create their works or to recast, transform, or adapt their expressive authorship. … what matters is the extent to which the human had creative control over the work's expression and actually formed the traditional elements of authorship.”
The emergence of AI is an international issue, and everyone from Elon Musk to Steven Spielberg has weighed in on the pros and cons of its use, proposed regulations, copyright infringement concerns, and positive and negative effects across various businesses and industries.
I am a member of the International Trademark Association Copyright Committee, and a current topic of interest is how different countries are addressing copyright issues raised by the emergence of AI technologies through proposed legislation. For example, the European Union is considering passage of the Artificial Intelligence Act, which among many proposed rules, mandates AI systems disclose copyrighted material generated from a prompt. This would help users of AI systems avoid the infringement of the copyright protected works of others.
This public policy guidance from the U.S. Copyright Office just scratches the surface of things to come and copyright questions to consider around AI.
What are the protections for companies and information sources from which these systems are pulling information? Will the creators behind the AI systems attempt to claim ownership over works their systems generate? What about an AI-generated work that generates an imitation of a celebrity’s voice? (see The Joe Rogan AI Experience).
The Copyright Office has acknowledged that AI-generated works generate a variety of other copyright issues, and it has launched an agency-wide initiative to consider them. As the Office receives more applications that fit the definition of AI + human input, the parameters around what’s protectable will evolve.
We will keep you posted on the copyright issues that emerge from the fascinating world of artificial intelligence.
About Haverly MacArthur: Adams and Reese Nashville Partner Haverly MacArthur focuses her practice on domestic and international clearance, acquisition, management, licensing and enforcement of intellectual property, with an emphasis on trademarks, copyrights, and domain names. She carries out IP due diligence in corporate transactions, securities and mergers and acquisitions, and represents clients in IP transactional matters. Haverly also has experience in protecting and enforcing IP rights in emerging markets. Haverly was recently ranked one of the “World’s Leading Trademark Professionals” by global IP media company WTR 1000.