Tag: copyright registration

Court of Appeals Affirms Registration Refusal for AI-Generated Output

In 2019, Stephen Thaler developed an AI system he called The Creativity Machine. He generated output he called A Recent Entrance to Paradise. When he applied to register a copyright claim in the output, he listed the machine as the author. He claimed ownership of the work as a work made for hire. In his application, he asserted that the work was autonomously created by a machine. The Copyright Office denied the claim on the basis that human authorship is a required element of a copyright claim.

On appeal, the United States district court affirmed the Copyright Office’s decision. Thaler attempted to argue, for the first time, that it was copyrightable because he provided instructions and directed the machine’s creation of the work. The district court found that he had waived that argument.

The Court of Appeals Affirms

Thaler sought review in the Court of Appeals for the Federal Circuit. On March 18, 2025, the Court of Appeals affirmed. The Court cited language in the Copyright Act that suggested Congress intended only human beings to be authors. The Court did not reach the question whether the Copyright Clause of the U.S. Constitution might protect machine-generated works if Congress should choose someday to extend copyright protection to these kinds of materials.

The Court held that the question whether Thalercould claim authorship on the basis of the fact that he made and directed the operation of the Creativity Machine has not been preserved for appeal.

Copyrights in AI-Generated Content

Copyright registrations are being issued for works created with generative-AI tools, subject to some important qualifications. Also, Internet Archves revisited (briefly)

The U.S. Copyright Office has issued its long-awaited report on the copyrightability of works created using AI-generated output. The legality of using copyrighted works to train generative-AI systems is a topic for another day.

Key takeaways:

  • Copyright protects the elements of a work that are created by a human, but does not protect elements that were AI-generated (probably the key take-away from the Report)
  • The Copyright Office believes existing law is adequate to deal with AI copyright issues; it does not believe any new legislation is needed
  • Using AI to assist in the creative process does not affect copyrightability
  • Prompts do not provide sufficient control over the output to be considered creative works.
  • Protection exists for the following, if they involve sufficient human creativity:
    • Selection, coordination, and arrangement of AI-generated output
      • Modification of AI-generated content
        • Human-created elements distinguishable from AI-generated elements.

Prompts

A key question for the Copyright Office was whether a highly detailed prompt could suffice as human creative expression. The Office says no; “[P]rompts alone do not provide sufficient human control to make users of an AI system the authors of the output. Prompts essentially function as instructions that convey unprotectable ideas. While highly detailed prompts could contain the user’s desired expressive elements, at present they do not control how the AI system processes them in generating the output.”

How much control does a human need over the output-generation process to be considered an author? The answer, apparently, is “So much control that the AI mechanism’s contribution was purely rote or mechanical. “The fact that identical prompts can generate multiple different outputs further indicates a lack of human control.”

Expressive prompts

If the prompt itself is sufficiently creative and original, the expression contained in the prompt may qualify for copyright protection. For example, if a user prompts an AI tool to change a story from first-person to third-person point of view, and includes the first-person version in the prompt, then copyright may be claimed in the story that was included in the prompt. The author could claim copyright in the story as a “human-generated element” distinguishable from anything AI thereafter did to it. The human-created work must be perceptible in the output.

Registration of hybrid works

The U.S. Copyright Office has now issued several registrations for works that contain a combination of both human creative expression and AI-generated output. Examples:

Irontic, LLC has a registered copyright in Senzia Opera, a sound recording with “music and singing voices by [sic] generated by artificial intelligence,” according to the copyright registration. That material is excluded from the claim. The registration, however, does provide protection for the story, lyrics, spoken words, and the selection, coordination, and arrangement of the sound recording.

Computer programs can be protected by copyright, but if any source code was generated by AI, it must be excluded from the claim. Thus, the Adobe GenStudio for Performance Marketing computer program is protected by copyright, but any source code in it that was AI-generated is not.

A record company received a copyright registration for human additions and modifications to AI-generated art.

As an example of a “selection, coordination and arrangement” copyright, there is the registration of a work called “A Collection of Objects Which Do Not Exist,” consisting of a collage of AI-generated images. “A Single Piece of American Cheese,” is another example of a registered copyright claim based on the selection, coordination, or arrangement of AI-generated elements.

China

A Chinese court has taken a contrary position, holding that an AI-generated image produced by Stable Diffusion is copyrightable because the prompts he chose reflected his aesthetic choices.

Internet Archives Postscript

In January, the Second Circuit Court of Appeals affirmed the decision in Hachette Book Group, Inc. v. Internet Archive. This came as no surprise. A couple of important things that bear repeating came out of this decision, though.

First, the Court of Appeals reaffirmed that fair use is an affirmative defense. As such, the defendant bears the burden of establishing the level of market harm the use has caused or may cause. While a copyright owner may reasonably be required to identify relevant markets, he/she/it is not required to present empirical data to support a claim of market harm. The defendant bears the burden of proof of a fair use defense, including proof pertinent to each of the four factors comprising the defense.

Confusion seems to have crept into some attorneys’ and judges’ analysis of the issue. This is probably because it is well known that the plaintiff bears the burden of proof of damages, which can also involve evidence of market harm. The question of damages, however, is separate and distinct from the “market harm” element of a fair use defense.

The second important point the Second Circuit made in Hatchette is that the “public benefit” balancing that Justice Breyer performed in Google LLC v. Oracle America, Inc. needs to focus on something more than just the short-term benefits to the public in getting free access to infringing copies of works. Otherwise, the “public benefit” in getting free copies of copyright-protected stuff would outweigh the rights of copyright owners every time.  The long-term benefits of protecting the rights of authors must also be considered.

True, libraries and consumers may reap some short-term benefits from access to free digital books, but what are the long-term consequences? [Those consequences, i.e.,] depriv[ing] publishers and authors of the revenues due to them as compensation for their unique creations [outweigh any public benefit in having free access to copyrighted works.]

Id.

They reined in Google v. Oracle.

Thomas James is a human. No part of this article was AI-generated.

Case Update: Andersen v. Stability AI

Artists Sarah Andersen, Kelly McKernan, and Karla Ortiz filed a class action lawsuit against Stability AI, DeviantArt, and MidJourney in federal district court alleging causes of action for copyright infringement, removal or alteration of copyright management information, and violation of publicity rights. (Andersen, et al. v. Stability AI Ltd. et al., No. 23-cv-00201-WHO (N.D. Calif. 2023).) The claims relate to the defendants’ alleged unlicensed use of their copyright-protected artistic works in generative-AI systems.

On October 30, 2023, U.S. district judge William H. Orrick dismissed all claims except for Andersen’s direct infringement claim against Stability. Most of the dismissals, however, were granted with leave to amend.

The Claims

McKernan’s and Ortiz’s copyright infringement claims

The judge dismissed McKernan’s and Ortiz’s copyright infringement claims because they did not register the copyrights in their works with the U.S. Copyright Office.

I criticized the U.S. requirement of registration as a prerequisite to the enforcement of a domestic copyright in a U.S. court in a 2019 Illinois Law Review article (“Copyright Enforcement: Time to Abolish the Pre-Litigation Registration Requirement.”) This is a uniquely American requirement. Moreover, the requirement does not apply to foreign works. This has resulted in the anomaly that foreign authors have an easier time enforcing the copyrights in their works in the United States than U.S. authors do. Nevertheless, until Congress acts to change this, it is still necessary for U.S. authors to register their copyrights with the U.S. Copyright Office before they can enforce their copyrights in U.S. courts.  

Since there was no claim that McKernan or Ortiz had registered their copyrights, the judge had no real choice under current U.S. copyright law but to dismiss their claims.

Andersen’s copyright infringement claim against Stability

Andersen’s complaint alleges that she “owns a copyright interest in over two hundred Works included in the Training Data” and that Stability used some of them as training data. Defendants moved to dismiss this claim because it failed to specifically identify which of those works had been registered. The judge, however, determined that her attestation that some of her registered works had been used as training images sufficed, for pleading purposes.  A motion to dismiss tests the sufficiency of a complaint to state a claim; it does not test the truth or falsity of the assertions made in a pleading. Stability can attempt to disprove the assertion later in the proceeding. Accordingly, Judge Orrick denied Stability’s motion to dismiss Andersen’s direct copyright infringement claim.

Andersen’s copyright infringement claims against DeviantArt and MidJourney

The complaint alleges that Stability created and released a software program called Stable Diffusion and that it downloaded copies of billions of copyrighted images (known as “training images”), without permission, to create it. Stability allegedly used the services of LAION (LargeScale Artificial Intelligence Open Network) to scrape the images from the Internet. Further, the complaint alleges, Stable Diffusion is a “software library” providing image-generating service to the other defendants named in the complaint. DeviantArt offers an online platform where artists can upload their works. In 2022, it released a product called “DreamUp” that relies on Stable Diffusion to produce images. The complaint alleges that artwork the plaintiffs uploaded to the DeviantArt site was scraped into the LAION database and then used to train Stable Diffusion. MidJourney is also alleged to have used the Stable Diffusion library.

Judge Orrick granted the motion to dismiss the claims of direct infringement against DeviantArt and MidJourney, with leave to amend the complaint to clarify the theory of liability.

DMCA claims

The complaint makes allegations about unlawful removal of copyright management information in violation of the Digital Millennium Copyright Act (DMCA). Judge Orrick found the complaint deficient in this respect, but granted leave to amend to clarify which defendant(s) are alleged to have done this, when it allegedly occurred, and what specific copyright management information was allegedly removed.

Publicity rights claims

 Plaintiffs allege that the defendants used their names in their products by allowing users to request the generation of artwork “in the style of” their names. Judge Orrick determined the complaint did not plead sufficient factual allegations to state a claim. Accordingly, he dismissed the claim, with leave to amend. In a footnote, the court deferred to a later time the question whether the Copyright Act preempts the publicity claims.

In addition, DeviantArt filed a motion to strike under California’s Anti-SLAPP statute. The court deferred decision on that motion until after the Plaintiffs have had time to file an amended complaint.

Unfair competition claims

The court also dismissed plaintiffs’ claims of unfair competition, with leave to amend.

Breach of contract claim against DeviantArt

Plaintiffs allege that DeviantArt violated its own Terms of Service in connection with their DreamUp product and alleged scraping of works users upload to the site. This claim, too, was dismissed with leave to amend.

Conclusion

Media reports have tended to overstate the significance of Judge Orrick’s October 30, 2023 Order. Reports of the death of the lawsuit are greatly exaggerated. It would have been nice if greater attention had been paid to the registration requirement during the drafting of the complaint, but the lawsuit nevertheless is still very much alive. We won’t really know whether it will remain that way unless and until the plaintiffs amend the complaint – which they are almost certainly going to do.

Need help with copyright registration? Contact attorney Tom James.

Copyright Registration and Management Services

There is now an inexpensive, intelligent alternative to “copyright mills” that is creator-friendly as well as a time-saver for attorneys.

In the United States, as in most countries, it is possible to own a copyright without registering it. Copyright registration is not a prerequisite to copyright protection. Rather, a copyright comes into being when a human being fixes original, creative expression in a tangible medium (or when it is fixed in a tangible medium at a human being’s direction.) Nevertheless, there are important reasons why you should register a copyright in a work you’ve created, particularly if you live in the United States.

Reasons for registering copyrights

If you live in the United States, the most important reason for registering a copyright is that you will not be able to enforce it unless you do. As a condition of filing an infringement claim in court, the United States Copyright Act requires a copyright owner to have applied for registration and received either a certificate of registration or a denial of registration from the U.S. Copyright Office. Registration is not a prerequisite to serving a cease-and-desist letter or a DMCA take-down notice. If you want to enforce your copyright in court, though, then you will need to register it.

This is true, as well, of infringement claims filed in the new Copyright Claims Board (sometimes called the “copyright small claims court” or “CCB”). It is not necessary to have received either a registration certificate or denial letter from the Copyright Office before filing a claim with the CCB. It is necessary, however, to have at least applied for registration before filing a claim.

Prompt registration is also important. You may not be able to recover statutory damages and attorney fees in an action for copyright infringement unless you registered the copyright either within three months after first publication or before the infringement began.

Registration gives you the benefit of a legal presumption that the copyright is valid. It also gives rise to a presumption of ownership, and that all of the other facts stated in the certificate (date of creation, etc.) are true.

Registration is not only critical to enforcement; it is also an important defensive strategy. If someone else registers the work and you do not, then they get all of the benefits described above and you do not. As the original creator of a work, you do not want to find yourself in the position of being sued for “infringing” your own work.

Registration workarounds that aren’t

The “poor man’s copyright”

One dangerous myth that has been circulating for years is that simply mailing yourself a copy of your work will be enough to establish your rights in it. This is not true. Anybody can make a copy of someone else’s work and mail it to himself or herself. Even if doing that could establish a person’s rights in a work, it is still going to be necessary to register the copyright in the work in order to enforce it in the U.S. legal system. And you won’t get any of the other benefits of registration, either, unless you do.

Posting to YouTube or another Internet website

Posting a copy of a work to YouTube or another Internet website is a modern-day version of the “poor man’s copyright” myth. The best this will do, however, is provide a date and time of posting. That proves nothing about authorship, and it does not provide any of the benefits of registration.

Notary

Notarization only verifies the validity of a signature; it does not prove anything about authorship.

Having an agent, distributor or licensing agency

Having an agent or a distributor, or listing with ASCAP, for example, does not prove authorship, nor does it provide any of the benefits of registration.

Registries and databases

Some websites offer to list your work in a “registry” or other database, supposedly as a means of protecting your copyright in the work. Some of these websites border on fraud. “Registering” your work with a private company or service will not prove authorship and will not give you any of the other benefits of registration. In the United States, the benefits of registration flow only to those who register the copyrights in their works with the United States Copyright Office.

True copyright registration services

Not all online copyright registration services are scams. Some of them will actually get a customer’s copyright registered with the United States Copyright Office. It is still necessary to proceed with caution when using them, however. Here are some things to watch out for.

Per-work vs. per-application

Pay careful attention to whether service fees are charged “per work,” on one hand, or “per application,” on the other.

If you have more than one work to register, it may sometimes be possible to register them with the Copyright Office as a group rather than individually. For example, a group of up to ten unpublished works by the same author may be registered with the Office using one application and paying one filing fee. Similarly, up to 750 photographs can sometimes be registered together as a group using only one application and paying only one filing fee.

An online service that offers to register copyrights at the rate of $100 “per work” might not inform users about the Copyright Office’s group registration options. Imagine paying $75,000 plus $33,750 filing fees to register copyrights in 750 photographs when you might have done it yourself, using one application, for a $55 filing fee.

Single, standard or group application

Once you’ve selected a service whose rates are “per application” rather than “per work,” you will want to ensure that the service includes group registration options. If a service indicates that it will prepare a “single” or “standard” application, then this may mean that it will not prepare applications for group registrations. Find that out before proceeding.

GRAM and GRUW applications

If you are a musician or composer, you may be able to qualify for a significant discount on Copyright Office filing fees by filing a GRAM or GRUW application. These are special application forms that allow the registration of up to 10 unpublished songs, or up to 20 published songs on an album, using one application and paying one filing fee. They are relatively new additions to the Copyright Office’s application forms repertoire. Some registration services will not, or do not yet, work with them.

Fees

First, understand the difference between a service fee and the Copyright Office filing fee. The Copyright Office filing fee is usually going to be between $45 and $85, depending on the kind of application. When a website quotes a fee for the service it provides, the fee it quotes normally does not include the Copyright Office filing fee — unless, of course, the website expressly says so.

Online registration service companies charge different rates for their services. One attorney website I saw quoted a $500 flat fee “per work.” Apparently, he would intend to charge $5,000 to register a group of 10 works.

Other services quote a much lower fee, typically somewhere between $100 and $250, either per work or per application.

These services typically are limited to filing a registration application, and nothing more. Some of them stand behind their work. Others charge additional fees if an application is rejected and they need to do additional work to fix the problem.

RightsClick™

A new online copyright service entered the scene last year. Called RightsClick™ it boasts processing fees that are 85% lower than most other registration services. Rather than charging $100 to $500 plus the Copyright Office filing fee, RightsClick charges $15 plus the Copyright Office filing fee.

It is also one of the few services that processes applications for group registration, and is up-front and clear about the cost. A group of up to 10 unpublished works, for example, can be registered for $15, that is to say, the same low processing fee that is charged for a single application.

There are monthly subscription charges, but even adding these into the mix does not bring the cost up to anything near to what many online services are charging.

The services provided include more than copyright registration, and additional features are planned for the future.

Learn more

Because I believe this innovative new service can be a great time and money saver for attorneys who work with authors and other copyright owners, I am hosting a continuing legal education (CLE) course through EchionCLE. It will be presented by Steven Tepp and David Newhoff, the developers of RightsClick. It will include an update on registration law and a demonstration of what RightsClick can do and how it works.

This program is FREE and is open to both attorneys and non-attorneys.

EchionCLE has applied to the Minnesota Board of Continuing Legal Education for 1.0 Standard CLE credit.

The live webinar will be held on May 17, 2023.

There will be a video replay on June 1, 2023.

For more detailed information, or to register, click here.

Disclosure statement

I do not own or have any interest in RightsClick. I have not been paid and have not received anything of value in connection with this post. This post is not an endorsement or advertisement for RightsClick or the services it offers. It is simply an announcement of what appears to me to be a service that could be of considerable benefit to authors, creators, publishers and attorneys.

New AI Copyright Guidance

The Copyright Office is providing guidance to copyright applicants who wish to register works with AI-generated content in them.

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.

Need help with a copyright application or registration?

Contact attorney Tom James.

A Recent Entrance to Complexity

The United States Copyright Office recently reaffirmed its position that it will not register AI-generated content, because it is not created by a human. The rule is easy to state; the devil is in the details. Attorney Thomas James explains.

Last year, the United States Copyright Office issued a copyright registration to Kristina Kashtanova for the graphic novel, Zarya of the Dawn. A month later, the Copyright Office issued a notice of cancellation of the registration, along with a request for additional information.

The Copyright Office, consistent with judicial decisions, takes the position that copyright requires human authorship. The Office requested additional information regarding the creative process that resulted in the novel because parts of it were AI-generated. Kashtanova complied with the request for additional information.

This week, the Copyright Office responded with a letter explaining that the registration would be cancelled, but that a new, more limited one will be issued. The Office explained that its concern related to the author’s use of Midjourney, an AI-powered image generating tool, to generate images used in the work:

Because Midjourney starts with randomly generated noise that evolves into a final image, there is no guarantee that a particular prompt will generate any particular visual output”

U.S. Copyright Office letter

The Office concluded that the text the author wrote, as well as the author’s selection, coordination and arrangement of written and visual elements, are protected by copyright, and therefore may be registered. The images generated by Midjourney, however, would not be registered because they were “not the product of human authorship.” The new registration will cover only the text and editing components of the work, not the AI-generated images.

A Previous Entrance to Paradise

Early last year, the Copyright Office refused copyright registration for an AI-generated image. Steven Thaler had filed an application to register a copyright in an AI-generated image called “A Recent Entrance to Paradise.” He listed himself as the copyright owner. The Copyright Office denied registration on the grounds that the work lacked human authorship. Thaler filed a lawsuit in federal court seeking to overturn that determination. The lawsuit is still pending. It is currently at the summary judgment stage.

The core issue

The core issue, of course, is whether a person who uses AI to generate content such as text or artwork can claim copyright protection in the content so generated. Put another way, can a user who deploys artificial intelligence to generate a seemingly expressive work (such as artwork or a novel) claim authorship?

This question is not as simple as it may seem. There can be different levels of human involvement in the use of an AI content generating mechanism. At one extreme, there are programs like “Paint,” in which users provide a great deal of input. These kinds of programs may be analogized to paintbrushes, pens and other tools that artists traditionally have used to express their ideas on paper or canvas. Word processing programs are also in this category. It is easy to conclude that the users of these kinds of programs are the authors of works that may be sufficiently creative and original to receive copyright protection.

At the other end of the spectrum are AI services like DALL-E and ChatGPT. Text and images can be generated by these systems with minimal human input. If the only human input is a user’s directive to “Write a story” or “Draw a picture,” then it would be difficult to claim that the author contributed any creative expression. That is to say, it would be difficult to claim that the user authored anything.

Peering into the worm can

The complicating consideration with content-generative AI mechanisms is that they have the potential to allow many different levels of user involvement in the generation of output. The more details a user adds to the instructions s/he gives to the machine, the more it begins to appear that the user is, in fact, contributing something creative to the project.

Is a prompt to “Write a story about a dog” a sufficiently creative contribution to the resulting output to qualify the user as an “author”? Maybe not. But what about, “Write a story about a dog who joins a traveling circus”? Or “Write a story about a dog named Pablo who joins a traveling circus”? Or “Write a story about a dog with a peculiar bark that begins, ‘Once upon a time, there was a dog named Pablo who joined a circus,’ and ends with Pablo deciding to return home”?

At what point along the spectrum of user-provided detail does copyright protectable authorship come into existence?

A question that is just as important to ask is: How much, if at all, should the Copyright Office involve itself with ascertaining the details of the creative process that were involved in a work?

In a similar vein, should copyright registration applicants be required to disclose whether their works contain AI-generated content? Should they be required to affirmatively disclaim rights in elements of AI-generated content that are not protected by copyright?

Expanding the Rule of Doubt

Alternatively, should the U.S. Copyright Office adopt something like a Rule of Doubt when copyright is claimed in AI-generated content? The Rule of Doubt, in its current form, is the rule that the U.S. Copyright Office will accept a copyright registration of a claim containing software object code, even though the Copyright Office is unable to verify whether the object code contains copyrightable work. If effect, if the applicant attests that the code is copyrightable, then the Copyright Office will assume that it is and will register the claim. Under 37 C.F.R. § 202.20(c)(2)(vii)(B), this may be done when an applicant seeks to register a copyright in object code rather than source code. The same is true of material that is redacted to protect a trade secret.

When the Office issues a registration under the Rule of Doubt, it adds an annotation to the certificate and to the public record indicating that the copyright was registered under the Rule of Doubt.

Under the existing rule, the applicant must file a declaration stating that material for which registration is sought does, in fact, contain original authorship.

This approach allows registration but leaves it to courts (not the Copyright Office) to decide on a case-by-case basis whether material for which copyright is claimed contains copyrightable authorship.  

Expanding the Rule of Doubt to apply to material generated at least in part by AI might not be the most satisfying solution for AI users, but it is one that could result in fewer snags and delays in the registration process.

Conclusion

The Copyright Office has said that it soon will be developing registration guidance for works created in part using material generated by artificial intelligence technology. Public notices and events relating to this topic may be expected in the coming months.

Need help with a copyright matter? Contact attorney Thomas James.

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