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Only if it’s human: Setting the copyright standard for works with AI-generated content

Cantor Colburn August / September 2023 IP Newsletter

Cantor Colburn August / September 2023 IP Newsletter

Artificial intelligence (AI) is disrupting a wide range of industries, including those involving the textual, visual and audio arts. It’s little surprise, then, that the U.S. Copyright Office has seen an increase in applications for copyright protection for AI-generated works.

In response, the Office released its first formal guidance regarding works containing material generated by AI in March 2023. The gist is that the future isn’t bright for works created solely by AI, but prospects are better for works that are merely AI-assisted.

The heart of the matter

The guidance focuses on “generative AI,” which “trains” on vast quantities of existing human-authored works and uses inferences from the training to generate new content. The Copyright Office said such technologies raise questions about whether the material they produce is copyrightable and whether works consisting of both AI-generated and human-generated material may be registered. It also questioned the information applicants should provide the Office when seeking to register them.

The guidance begins by highlighting the long-standing “human authorship requirement.” According to statutory and judicial authorities, copyright can protect only material that results from human creativity. So the Copyright Office previously denied registration to a visual work autonomously created by a “computer algorithm running on a machine.”

Under the new guidance, the Office will consider whether the AI contributions are the result of “mechanical reproduction” or an author’s “own original mental conception” from which the author gave visible form. This requires a case-by-case inquiry that will depend on the circumstances — particularly how the AI tool operates and how it was used to create the final work.

The Office won’t register a work if the traditional elements of authorship were produced by a machine — for example, when an AI tool receives a prompt from a human and responds by producing complex written, visual or musical works. The guidance likens such prompts to instructions to a commissioned artist: They identify what the prompter wants to have depicted, but the machine determines how to implement the instructions in its output. When AI technology determines the expressive elements of the output, the work isn’t the result of human authorship.

But the guidance makes clear that works with AI-generated material can also contain sufficient human authorship for copyright. For instance, a human may select or arrange the material in a sufficiently creative way that the resulting work as a whole is an original work of authorship. An artist also could modify AI-generated material to such a degree that the modifications satisfy the copyright standard. The copyright, however, will protect only the human-authored aspects of the work.

Registration requirements

The guidance lays out explicit requirements for copyright applications for works with AI-generated materials. For example, applicants must disclose the inclusion of AI-generated content and provide a brief explanation of the human author’s contributions.

Notably, the Office expects applicants with previously submitted or pending applications for works with AI-generated material to correct their applications if they don’t include the requisite disclosures. If an application has already resulted in a registration, the applicant should submit a supplementary registration to correct the public record, describing the human contributions and disclaiming the AI-generated content.

Stay tuned

The Copyright Office will continue to monitor this evolving area of the law. It held several public “listening sessions” on the matter earlier this year and intends to solicit public comment later this year. We’ll keep you apprised of important developments.

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