Be cautious about using an artificial intelligence (AI) program to produce art, photographs, music, writing, or anything you would like to be protected by copyright. The U.S. Copyright Office recently issued new policy guidance stating that only works of human authorship can be copyrighted.
Works that are generated by AI cannot be copyrighted at all, the agency says. This is because the word “author,” as used by the Copyright Act and in the U.S. Constitution, has long been interpreted by the courts as having to be a human being.
The Copyright Office has already ruled that when an AI is given a user’s prompt and produces a written work, that work is not copyrightable. It does not become the copyrighted material owned by the user.
What about works that incorporate elements that were generated by AI?
There will be situations, however, where AI-generated content could be included in a copyrightable work. This depends on the exact situation, and the Copyright Office will decide this on a case-by-case basis, according to the policy guidance.
The question to be decided in each case is whether the work contains “sufficient human authorship to support a copyright claim.”
In one case the Copyright Office mentioned, it ruled that the author of a comic book illustrated with AI-generated images only had copyright protection over the written portion of the work. The AI-generated illustrations themselves could not be protected.
On the other hand, the policy guidance explicitly envisions that “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.”
Finally, the policy guidance makes clear that those who create works containing AI-generated elements do retain copyright protection over the human contributions to the work.
What do copyright applicants need to know?
According to the policy guidance, copyright applicants are required to disclose what AI-generated elements are involved in their work.
When the AI-generated elements are more than de minimis, applicants should explicitly exclude them from the application.
If you have previously submitted an application for copyright over a work containing AI elements, you should correct the application in line with this policy guidance.
You may need legal guidance
Naturally, this is a lot to take in, and a blog post is not legal advice. If you have questions about copyrighting mixed AI material, contact your intellectual property lawyer.
