Written by Robert H. Rotstein and James Berkley

Today (March 16, 2023), the U.S. Copyright Office issued a statement clarifying its practices for examining and registering works containing material generated through use of artificial intelligence (“AI”) technology.  Published in the Federal Register, and available at this link, the statement offers public guidance for registration of works that embody, either wholly or in part, materials generated by systems and programs falling under the AI rubric, which have been receiving widespread media attention and are becoming increasingly powerful and sophisticated.  These include products in various stages of commercial release that permit generation of complex text and images in response to human-entered “prompts” (i.e. queries or instructions) such as ChatGPT (text), DALL-E (images), Midjourney (images), and the recent successor to ChatGPT named GPT-4 (both text and images).  The new guidance is important because it clarifies that works using AI-generated materials are registrable if they meet threshold criteria for human authorship; that the Copyright Office will adopt a “case-by-case” approach to evaluating applications; and that for any such work, applicants should take particular steps to identify how AI has been used and what human authors contributed.

AI and Copyright’s Human Authorship Requirement

As the new guidance explains, U.S. copyright protection extends only to works that are the “product of human creativity.” Thus, a person may own the copyright in a photograph taken with a camera because the photograph is understood to be an “original work of art, the product of the [taker’s] intellectual invention.” By contrast, one case held that a monkey, being non-human, may not hold a copyright in a photographic “selfie.” Similarly, a work supposedly created by a divine being cannot obtain copyright protection.

The Copyright Office’s new guidance treats AI as akin to the selfie-taking monkey: AI can be neither the author nor even a co-author of a copyrightable work.  Moreover, a person who inputs prompts that lead to AI-generated results cannot claim copyright protection for the results unless this is done with such “creative control” that the person, not the AI, can be said to have “actually formed the traditional elements of authorship.” 

When Is a Work Using AI-Generated Elements Registrable?

Under the new guidance AI-registration issues will be decided on “case-by-case inquiry.” Where AI is used in the creation of a work, applicants for registration mustspecifythe nature of the AI contributions.  While resisting hard and fast rules, the Copyright Office offers the following guidelines:

In the case of works containing AI-generated material, the Office will consider whether the AI contributions are the result of “mechanical reproduction” or instead of an author’s “own original mental conception, to which [the author] gave visible form.” The answer will depend on the circumstances, particularly how the AI tool operates and how it was used to create the final work. … If a work’s traditional elements of authorship were produced by a machine, the work lacks human authorship and the Office will not register it. (Emphasis added.)

The new guidance clarifies that works generated merely as a response to an inputted “prompt” will typically not be registrable.  This is because “when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the ‘traditional elements of authorship’ are determined and executed by the technology – not the human user.”  According to the Office’s current understanding, users who input such prompts “do not exercise ultimate creative control over how such systems interpret prompts and generate material.” These users thus act like a person who “gives instructions to a commissioned artist” (except the “artist” is not human, and the result is not entitled to copyright protection at all). 

As an example, the Copyright Office posits a prompt requesting a Shakespearean-style poem about copyright law. The AI may generate an actual poem, with all the typical attributes of poetry, but the system itself determined the expressive elements of the poem. These expressive elements are “not the product of human authorship” and are therefore non-registrable.

Registrations Based on Human Contribution

However, the new guidance does identify scenarios in which a copyright registration for a work including AI-generated materials is possible, even where underlying content was generated by relatively simple prompts.  These include the following:

1. “A human may select or arrange AI-generated material in a sufficiently creative way that ‘the resulting overall work as a whole constitutes an original work of authorship’” (drawing on the Copyright Act’s definition of “compilation”).
2. “An artist may modify material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection” (drawing on the concept of a derivative work).

Notably, both of these treat the human-authored component as an additive on top of the portions contributed by AI.  As with any derivative work or compilation, the scope of copyright protection will only extend to the added (human) contributions

What Applicants Should Do

The new guidance offers several clear directives to anyone intending to submit (or who has already submitted) an application for registration of a work containing AI-generated materials.  These include:

1. Duty to disclose. “[A]pplicants have a duty to disclose the inclusion of AI-generated content in a work submitted for registration and to provide a brief explanation of the human author’s contributions to the work.”
2. Choosing a form.  Applicants for copyright registration should use the “Standard Application” form, which has fields for disclaiming the non-owned and/or non-protectable elements of a work.  Copyright protection can be claimed only for the human contributions to the work.
3. Identifying authors’ contribution. The application must identify the work’s authors – which should not include the AI technology or its source company – and “must provide a brief statement in the “Author Created” field that describes the authorship that was contributed by a human.”  (Examples refer to identifying particular portions of the work, or the “selection, coordination, and arrangement” of elements.)
4. Excluding AI-generated materials. “AI-generated content that is more than de minimis should be explicitly excluded from the application.” This should be done using the “Limitation of Claim” section, under the heading “Material Excluded.”
5. In case of uncertainty.  If there is uncertainty how to fill out the application form, it is permissible to “simply provide a general statement that a work contains AI-generated material.”  The Copyright Office will contact the applicant as part of the review process.
6. Submitted registrations.  Applications for registration that have already been submitted may require correction; the correction process can be initiated by contacting the Copyright Office’s Public Information Office. 
7. Already-issued registrations.  If an application for a work containing AI-generated materials has resulted in registration, a supplementary registration should be made to provide the information described above, along with information in the “New Material Added/Other” field.  As long as there was “sufficient human authorship,” the Copyright Office will issue a supplementary registration certificate bearing a disclaimer.

Importantly, the new guidance specifies that failing to correct an existing registration for a work containing AI-generated materials can result in “losing the benefits of registration,” and even in cancellation.  The guidance also points out that in an infringement action, a court may disregard an existing registration under Section 411(b) of Copyright Act if the applicant “knowingly provided the Office with inaccurate information, and the accurate information would have resulted in the refusal of the registration.”

If you have any questions about the implications of this new guidance, or would like to discuss a planned or pending copyright registration, please contact us.