Copyright Office Declares Most AI Output Copyright Unprotectable
In recent years, artificial intelligence has emerged as a powerful tool for generating original works. The question of who owns the copyright to these works, however, has become increasingly complex.
Copyright registration in the United States has traditionally been limited to human creators, but with the rise of AI-generated works, the distinction between human and machine-made creations has become less clear, leading to uncertainty around copyright ownership and register-ability.
On March 16, 2023, the U.S. Copyright Office issued a statement of policy titled “Copyright Registration Guidance: Works Containing Material Generated By Artificial Intelligence.”1 The Office notes in the statement that it is increasingly being requested to review works generated by artificial intelligence.
This policy addresses a central question in copyright and artificial intelligence: Who, if anyone, owns the copyright in works generated by artificial intelligence? The Copyright Office’s answer is, mostly, no one. While works containing material generated by artificial intelligence are copyrightable to the extent of the non-AI creativity they contain, the AI-created material is generally not copyrightable.
In this article, we dive further into the Copyright Office’s policy, examine the current landscape of AI and copyright law, and raise unanswered questions on how this policy may shape the use and creation of AI tools in the future.
Table of Contents
AI Output and Copyright
There is a long history of humans using technology to assist in the creation of expressive works – indeed, giving the technology much of the credit, J.S. Bach said, “[a]ll one has to do is hit the right keys at the right time and the instrument plays itself.” Shakespeare said, “I just dip the pen in ink and let it loose.”2 However, as long as a human supplied copyrightable authorship, using a device to help produce the work did not preclude copyright.
By contrast, despite that AI is a human creation and even if AI is guided in its “creative” work by humans, the Copyright Office concludes that, “if a work’s traditional elements of authorship were produced by a machine, the work lacks human authorship.”3 The Office identifies exemplary tools such as Midjourney and ChatGPT which generate works with a single prompt from a human.
The Copyright Office has consistently refused registration for works that were created by what it calls generative AI. Generative AI, according to the Copyright Office, means technology that is capable of producing expressive material. The Copyright Office describes generative AI as the kind of AI that trains on pre-existing works and generates new content based on “inferences” drawn from those works.
Works Combining AI Output and Human Contributions
Despite rejecting copyright protection for AI-generated works, the Copyright Office says that works combining AI product and human creative input can still be protected, which somewhat protects AI product through the back door:
In other cases, however, a work containing AI-generated material will also contain sufficient human authorship to support a copyright claim. For example, a human may select or arrange AI-generated material in a sufficiently creative way that “the resulting work as a whole constitutes an original work of authorship.” Or an artist may modify material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection. In these cases, copyright will only protect the human-authored aspects of the work, which are “independent of” and do “not affect” the copyright status of the AI-generated material itself.4
The above reiterates the well-established rule that uncopyrighted matter, such as AI-generated words or pictures, does not become protected by being included in a copyrighted work. An art book does not acquire copyright rights in the Mona Lisa by including a picture of it in the book.
The new policy mentions a copyright application that was submitted for a graphic novel in which the claimant wrote the text, arranged and selected the text and pictures, and AI drew the pictures. The Copyright Office issued a registration although it said that the individual pictures were not protected by copyright.
However, the copyright on a work that in part includes AI product forbids wholesale copying of the work. If a copyist extracts the AI product and copies or distributes only the AI product, no infringement occurs. On the internet, however, it is easiest for a copyist to post or otherwise distribute the entirety of a work, without dissection. Consequently, copyright in a work combining AI and human product would, practically speaking, prevent much internet-style copying of the AI product.
If a user, as part of the AI product, does supply some of the creative authorship, is the user then a co-author with the AI? That would appear to be impossible since an author must be human: the AI is not human so the user would not have another author to be a co-author with. In such a case, the user would be the sole author; the AI-contributed material would presumably be treated as public domain matter.
Effect of Prompts Actuating AI Output
Could the prompts that actuate AI to produce a work constitute copyrightable human input? The Copyright Office says no. Insisting that a human must produce the “traditional elements of authorship, ”the Copyright Office says that a mere prompt is not deemed to produce the creative aspects of the AI work. The Copyright Office analogizes prompts to instructions that might be given to an artist hired to create a work. In such a case, even though the instructions given to the artist might be extensive, the person providing the instructions is not deemed to be the author or even a co-author (unless agreed to by the artist).
The new policy comments that some technologies allow users to provide interactive feedback via additional prompts. The policy acknowledges that additional prompts give the user more influence over the output, but concludes that it is still the AI that decides how to implement the instructions and that therefore creates what the Copyright Office considers “traditional elements of authorship.”
Is there room for a grey area in which a prompting human could supply enough creative authorship to be deemed the author of the AI output? Hard to say. Some of the new policy can be read to imply a “yes.” Using the example of a poem, the policy says that even if the user instructs the AI to write a poem “in the style of William Shakespeare,” the AI will still decide “the rhyming pattern, the words in each line, and the structure of the text.” By implication, to the extent that the user, rather than the AI, determines any of these things, the user is potentially the author of the resulting product.
Potential Rights of AI Program Authors
What about the author of software that operates the AI (or, possibly, constitutes the AI) as the author of the output? The new policy does not comment on this question.
While yet undecided in court, it appears highly likely that the author of AI software would not be deemed the author of the AI output. From the early days of copyright in computer software and works generated by computer software, the software and the works generated by the software have been recognized as separate copyrightable works. The software that operated the Pacman video game was a separate work from Pacman, the voracious yellow disk, the ghosts that pursued him, the mazes that he ran through, and the accompanying sounds.
On the other hand, the policy is not meant to imply that technological tools cannot constitute part of the creative process. The policy identifies, for example, an artist using Adobe Photoshop to edit an image still remains the author of the modified image.
Court Decisions Thus Far
The Copyright Office does not have the last word on copyrightability – that belongs to the federal courts. Do the courts think that the Copyright Office is right in refusing copyright registration of AI-generated work?
The courts have not yet spoken on the copyrightability of AI output. There are pre-AI decisions that entertain that possibility that the entity – computer program or human user –that does the “lion’s share” of the creative work will be awarded the copyright in the output. Design Data Corp. v. Unigate Enter., Inc., 847 F.3d 1169, 1173 (9th Cir. 2017); Mfg. Automation & Software Sys., Inc. v. Hughes, 2018 WL 3197696, at *10 (C.D. Cal. 2018); Rearden LLC v. Walt Disney Co., 293 F. Supp. 3d 963, 969 (N.D. Cal. 2018); 4 Nimmer on Copyright § 13.03[F]. Those decisions do not, however, decide that the “lion’s share” rule is the law, assuming that there is any copyright in the output to award.
Meanwhile, the Copyright Office controls the procedural prerequisite for going to court in an infringement case: copyright registration. To be precise, a copyright claimant for a domestic United States work must either register copyright in the work or have its application for registration denied before it can commence an infringement action. While rejected copyright claimants can still sue for copyright infringement, they have an uphill battle on the issue of copyrightability due to deference given the Copyright Office’s views.
There are cases mentioned in the Copyright Office’s new policy in which would-be registrants of copyright in AI output are already challenging the Copyright Office’s rejections. The case outcomes are eagerly awaited.
1. 88 Fed Reg. 16190.
2. No, he didn’t.
3. 88 Fed Reg. 16192.
4. 88 Fed. Reg. at 16192-93.
David Rabinowitz & Milton Springut are partners at Moses & Singer LLP, a practice who believe in investing heavily in understanding their clients’ businesses and developing close working relationships with them. David focuses in the substantive areas of financial industry litigation, including corporate trusts and letters of credit, trusts and estates, intellectual property, contracts and employment. Milton focuses on intellectual property litigation and counseling. He litigates and prosecutes patents in the scientific disciplines, including electrical and electronic systems, computer hardware and software, and business systems.
This article is intended for informational purposes only, and doesn't constitute tax, accounting, or legal advice. Everyone's situation is different! For advice in light of your unique circumstances, consult a tax advisor, accountant, or lawyer.