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Client Alert: The US Copyright Office Issues Policy Statement On Examination and Registration of Works Containing AI-Generated Material

March 16, 2023

On March 16, 2023, the United States Copyright Office (USCO) issued a Statement of Policy titled “Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence,” which clarifies the USCO’s practices for examining and registering works that contain material generated using Artificial Intelligence (“AI”) technology.

Cantor Colburn examines the issues and what this means for you in this Client Alert, The US Copyright Office Issues Policy Statement On Examination and Registration of Works Containing AI-Generated Material.

In the course of preparing our alert, we thought of how the Cantor Colburn 2022 Holiday Greeting and how it is useful for understanding USCO's guidance.

Last year, #TeamCantorColburn used Al to create art by responding to a prompt which AI then used to generate brand-new images. Although the images were new and original works, the USCO would consider them as uncopyrightable under the new policy. Because the AI technology only received a prompt from a human, the visual work produced in response to the prompt is considered as being determined and executed by the technology, not by the human user. As a result, the AI-generated art created for the Cantor Colburn Holiday Greeting would not meet the “traditional elements of authorship” required for copyright registration. However, as the statement points out, there are circumstances in which “a work containing AI-generated material will also contain sufficient human authorship to support a copyright claim.” Relying on the Copyright Statute, the Statement further indicates that, “an AI-generated work would be eligible for copyright registration if AI-generated material is selected or arranged in a sufficiently creative way that ‘the resulting work as a whole constitutes an original work of authorship.’” If all the AI-generated art from Cantor Colburn’s 2022 Holiday Greeting were re-arranged by a person in a sufficiently creative way, the combination of all the images may be eligible for copyright registration as a compilation. The AI-generated material in the compilation, however, will not be protected outside of the compilation.

Cantor Colburn AI generated holiday 2022 greeting

Attorneys in Cantor Colburn’s Trademark & Copyright Practice and Artificial Intelligence Practice Group have substantial experience representing clients in these types of matters. Primary contacts are:

Please do not hesitate to contact us or your Cantor Colburn attorney with any questions you may have regarding this matter and your IP in general.

This client alert was written by Meghan McDermott with contributions from Eric Baron, David Bomzer, Michelle Ciotola, and Todd Garabedian.

Please note that each situation has its own unique circumstances and ramifications. This Client Alert is for informational purposes only and is not legal advice.

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