On Thursday, March 16, 2023, the United States Copyright Office published new guidance regarding the registration of copyrights in AI-generated material. in the Federal Register. Here is the tl;dr version.
The Problem
Artificial intelligence (AI) technologies are now capable of producing content that would be considered expressive works if created by a human being. These technologies “train” on mass quantities of existing human-authored works and use patterns detected in them to generate like content. This creates a thorny question about authorship: To what extent can a person who uses AI technology to generate content be considered the “author” of such content?
It isn’t a hypothetical problem. The Copyright Office has already started receiving applications for registration of copyrights in works that are either wholly or partially AI-generated.
The U.S. Copyright Act gives the Copyright Office power to determine whether and what kinds of additional information it may need from a copyright registration applicant in order to evaluate the existence, ownership and duration of a purported copyright. On March 16, 2023, the Office exercised that power by publishing Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence in the Federal Register. [Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16190 (March 16, 2023)]
Sorry, HAL, No Registration for You
Consistent with judicial rulings, the U.S. Copyright Office takes the position that only material that is created by a human being is protected by copyright. In other words, copyrights only protect human authorship. If a monkey can’t own a copyright in a photograph and an elephant can’t own a copyright in a portrait it paints, a computer-driven technology cannot own a copyright in the output it generates. Sorry, robots; it’s a human’s world.
As stated in the Compendium of Copyright Office Practices:
The Copyright Office “will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”
U.S. Copyright Office, Compendium of U.S.
Copyright Office Practices sec. 313.2 (3d ed. 2021)
Partially AI-Generated Works
A work that is the product of a human being’s own original conception, to which s/he gave visible form clearly has a human author. A work that is entirely the result of mechanical reproduction clearly does not. Things get murkier when AI technology is used to generate content to which a human being applies some creativity.
According to the new guidance, merely prompting an AI technology to generate a poem, drawing or the like, without more, is not enough to establish human authorship if the AI technology determines the expressive elements of its output. This kind of content is not protected by copyright and a registration applicant therefore will need to disclaim it in the application.
On the other hand, if a human being selects and arranges AI-generated content, the selection and arrangement may be protected by copyright even if the content itself is not. Similarly, if a human being makes significant modifications to AI-generated content, then those modifications may receive copyright protection. In all cases, of course, the selection, arrangement or modification must be sufficiently creative in order to qualify for copyright protection.
Disclosure required
The new guidance imposes a duty on copyright registration applicants to disclose the inclusion of AI-generated content in any work submitted for registration.
Standard application
If you use AI technology to any extent in creating the work, you will need to use the Standard application, not the Single application, to register the copyright in it.
Claims and disclaimers
The applicant will need to describe the human author’s contributions to the work in the “Author Created” field of the application. A claim should only be made in this.
Any significant AI-generated content must be explicitly excluded (disclaimed), in the “Limitations of the Claim” section of the application, in the “Other” field, under the “Material Excluded” heading.
Previously filed applications
If you have already filed an application for a work that includes AI-generated material, you will need to make sure that it makes an adequate disclosure about that. The newly-issued guidance says you should contact the Copyright Office’s Public Information Office and report that you omitted AI information from the application. This will cause a notation to the record to be made. When an examiner sees the notation, s/he may contact you to obtain additional information if necessary.
If a registration has already been issued, you should submit a supplemntary registration form to correct it. Failing to do that could result in your registration being cancelled, if the Office becomes aware that information essential to its evaluation of registrability has been omitted. In addition, a court may ignore a registration in an infringement action if it concludes that you knowingly provided the Copyright Office with false information.