Copyright Office Issues Guidance for Works Containing Material Generated by AI
Published: April 6, 2023
On March 16th, the US Copyright Office issued a policy statement regarding the registration of works that contain material generated by artificial intelligence (AI) technology. This statement clarifies the Copyright Office’s practices for examining and registering works that contain such material, as generative AI technologies are capable of producing various forms of expressive material, such as text and images.
The policy statement comes on shortly after the Copyright Office’s partial revocation of the copyright registration issued to Kristina Kashtanova for the graphic novel, Zarya of the Dawn. Kashtanova did not disclose in the copyright application that she used an AI application to create parts of the novel, nor did she disclaim the portion of the work generated by AI. After the copyright in Zarya of the Dawn was registered, the Copyright office became aware, due to statements made by Kashtanova in social media, that portions of the graphic novel were created using Midjourney’s AI tool. The office then notified Kashtanova that it intended to cancel the registration unless she provided additional information in writing showing why the registration should not be canceled.
The basis for the Copyright office’s proposed cancellation of the registration in Zarya of the Dawn is the requirement that, in order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Kashtanova’s counsel argued that she used Midjourney as a creative tool, similar to how a photographer may use Adobe Photoshop. Kashtanova’s counsel argued that the artist and not the machine guided the structure and content of each image. The copyright office was not persuaded and held that Midjourney users are not the “authors,” for copyright purposes, of the images the technology generates.
The Copyright Office’s policy statement responds to the many questions that have been raised regarding whether AI-generated material is protected by copyright and, if so, to what extent a work consisting of both human-authored and AI-generated material can be registered. The Copyright Office has stated that it will not recognize copyright in AI-generated work, and due to pre-emption, state law cannot provide similar protection. Therefore, any work generated by AI technology is considered to be in the public domain and available for anyone to use.
However, the Copyright Office’s policy statement also provides guidance on portions of AI-generated work that could be protected by copyright. If material is produced by AI technology solely in response to user prompts, then the “traditional elements of authorship” are determined and executed by the technology – not the human user. However, if a human exercises the ultimate creative control over how a generative AI technology interprets prompts and generates material, if a human selects and arranges AI-generated material in a sufficiently creative way, or if a human modifies the AI-generated material to such a degree that the modifications meet the standard for copyright protection, then that portion of the work representing the human authored aspect would be protectable.
The Copyright Office’s policy statement also provides guidance for applicants seeking to register works that incorporate AI-generated material. Applicants must describe the authorship that was contributed by a human, explicitly exclude AI-generated content from the copyright claim, and not list an AI technology or the company that owns such AI technology as a co-author.