United States Copyright Office Issues Guidance on AI-Generated MaterialMarch 24, 2023
Last Thursday, the United States Copyright Office issued a statement clarifying its position on the copyright registration of works that contain material generated through artificial intelligence (“AI”) technology. The statement provides much-needed guidance on the copyright protections available to AI-generated works, although there are still many unknowns due to the myriad ways that AI can be used. Potential copyright applicants wishing to use AI to create a work must carefully consider the role that AI will play in order to successfully register the work.
Copyright is a form of intellectual property for protecting creative works of authorship, such as literature, art, music, film, web sites, photography, and software. Copyright originates in the authors of such works, and while registration is not required to own a copyright, a 2019 Supreme Court ruling clarified that registration with the United States Copyright Office is required to enforce the copyright in court.
In the statement of policy published in the Federal Register on March 16, 2023 (the “Policy Statement”), the Copyright Office reiterated its position that copyright protections only extend to material that is the product of human creativity. This is because the term “author,” as used in the Constitution and the Copyright Act, excludes non-humans. Thus, if a work was not created by a human, the work is not eligible for copyright protection in the United States, and cannot be registered as a copyright. This rule applies to all non-human authors. For example, in 2018, the Ninth Circuit held that animals lack standing to sue for copyright infringement under the Copyright Act, because its terms assume human authors, which necessarily exclude animals.
Turning to the copyright protections available to AI-generated materials, the threshold question is whether the traditional elements of authorship in the work were conceived and executed by an AI, or if the material was the product human authorship, with the assistance of AI. For example, when an AI technology creates an image based on a human prompt, the resulting image is not copyrightable, according to the Copyright Office, because the human prompting the image is not exercising sufficient creative control over the output. Rather, the Policy Statement states, the AI technology is serving as a commissioned artist which chooses the artistic elements of the work, instead of serving as a tool to help a human author realize an artistic expression. For example, a graphic novel that is comprised of human-authored text with images generated by an AI service is a copyrightable work to the extent of the human-authored text, but the individual images are not copyrightable because they were generated by an AI.
The guidance is also clear that applicants for copyright registration have a duty to disclose AI-generated content in a work submitted for registration because such information bears upon the preparation of the work and the existence and scope of the copyright. Thus, if you create any materials with the assistance of AI, such as photographs, art, animations, literary works, or audio, it is important that you contact a licensed and qualified copyright attorney to determine what copyright protections, if any, will be available for your work, and complete the required application forms accurately.
The attorneys at Lewis Rice have extensive experience in registering and protecting our clients’ copyrights. If you have questions about how the U.S. Copyright Office’s recent announcement will affect your copyrights, please reach out to a member of Lewis Rice’s Intellectual Property or Media & Communications group.