Disclaimer: No robots were involved in writing this article.
The US Copyright Office has published guidelines on copyright registration for works that contain material generated by artificial intelligence technology. The policy statement explains the procedures for examining and registering works containing AI contributions and describes how the Office applies copyright requirements to human authorship.
“In the Office’s view, it is generally accepted that copyright can only protect material that is the product of human creativity. Basically, the term “author,” used in both the Constitution and copyright law, excludes non-humans. … When an AI technology determines the expressive elements of its output, the material generated is not the product of human authorship. Therefore, this material is out of copyright and must be rejected in a registration application.”
Guidance comes amid an explosion of AI software and generative technologies like ChatGPT, Jasper, AI Writer, and others that are scouring vast amounts of human-authored works across the web to turn content into expressive works in minutes using prompts and keywords. The output is typically in text, image and/or audio form.
Human creativity protected; AI technology not protected
Copyright requests are evaluated on a case-by-case basis, but generally all AI contributions to a work are out of copyright. So if you type a command prompt into 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 performed by the technology – not by the human user”.
“Users do not have ultimate creative control over how such systems interpret prompts and generate material,” the guidelines state. “Instead, these prompts work more like instructions to a commissioned artist – they specify what the prompter wants rendered, but the machine determines how those instructions are implemented in its output.”
In 2018, the Copyright Office rejected a visual work that the applicant described as “created autonomously by a computer algorithm running on a machine.” The work could not be registered because it was created “without any creative contribution from a human actor”.
However, if the human author contributes original and creative elements to the work, this part can be considered for copyright protection.
For example, the US Copyright Office reviewed the comic book Zarya of the Dawn. It contained human-written text combined with images generated by an AI service, Midjourney. Protection was originally granted to the entire book, but after a review earlier this year, the Office revoked protection and issued a new copyright that covered only the text and arrangement, excluding the images created by Midjourney.
The policy statement also provides guidance on how an applicant should attempt to register works that contain both human authorship and AI-generated content.
Applicants must complete a standard application, identifying the author(s) and providing a description of human-contributed authorship in the Author Created field. Applicants should not cite an AI technology as author or co-author.
The guidance goes on to state that AI-generated content that is more than minor (of little importance) should be described in the “Limitation of Claims” section. Applicants and registrants who have failed to previously disclose the AI-generated content in their works to the Copyright Office must also take corrective action.
Taking into account the requirement of human authorship
How does the Copyright Office distinguish human authorship from AI contributions? The guidance states that this applies on a case-by-case basis, but some limits have been published for registrants to take into account.
The guidelines state: “The Office will consider whether the AI contributions are the result of ‘mechanical reproduction’ or instead of an author’s ‘own original mental image’ [the author] gave visible form. The answer will depend on the circumstances, specifically how the AI tool works and how it was used to create the final work.”
Therefore, a human can creatively select or arrange AI-generated material so that “the resulting work as a whole constitutes an original work of authorship.” … Copyright protects only the human-created aspects of the work, which are independent of the copyright status of the AI-generated material themselves and do not impair it.”
The guidelines clarify that technological tools have been, and can continue to be, used as part of the creative process: “Authors have long used such tools to create their works or to restate, transform, or adapt their expressive authorship.” … What matters is the extent to which the human had creative control over the expression of the work and actually constituted the traditional elements of authorship.”
The advent of AI is an international issue, and everyone from Elon Musk to Steven Spielberg has spoken out on the pros and cons of its use, proposed regulations, copyright infringement concerns, and positive and negative impacts on various companies and industries.
I am a member of the International Trademark Association’s Copyright Committee and a current topic of interest is how different countries are tackling copyright issues raised by the rise of AI technologies through legislative proposals. For example, the European Union is considering passing the Artificial Intelligence Act, which, among many proposed rules, will require AI systems to disclose copyrighted material generated in response to a solicitation. This would help users of AI systems to avoid infringing on the copyrighted works of others.
These policy guidelines from the US Copyright Office only scratch the surface of things to come and copyright issues to consider when it comes to AI.
What safeguards are in place for organizations and information sources from which these systems draw information? Will the creators of the AI systems try to claim ownership of the works produced by their systems? How about an AI-generated work that mimics a celebrity’s voice? (see The Joe Rogan AI Experience).
The Copyright Office has recognized that AI-generated works pose a number of other copyright issues and has launched an agency-wide initiative to review them. As the Office receives more applications that fit the definition of AI + human input, the parameters for what is protectable will evolve.
We keep you up to date on the copyright issues arising from the fascinating world of artificial intelligence.