Can AI Steal Your Creative Thunder U.S. Copyright Office Weighs In

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More information: https://www.federalregister.gov/documents/2023/03/16/2023-05321/copyright-registration-guidance-works-containing-material-generated-by-artificial-intelligence

AI Art Copyright US Law

The U.S. Copyright Office is a place that helps protect creative works made by people, like books, music, and art. They make sure that only the person who created the work has the right to use it or make money from it.

Nowadays, there are some really smart computers, called artificial intelligence or AI, that can make things too. But the Copyright Office says that only things made by humans can be protected. So, if a computer makes a drawing or writes a story, that work can’t be protected like a work made by a person.

When people use computers to help make something creative, they have to tell the Copyright Office what parts they made and what parts the computer made. If the person did most of the work, they can still protect their creation. But if the computer did most of the work, they can’t.

So, the Copyright Office wants to make sure that people are the ones creating things, not just computers, and they have rules to help them do that.

Background

The Copyright Office has been around since 1870 and is responsible for managing copyright registration and advising Congress and other authorities on copyright issues. They’ve noticed a recent trend of AI-generated content and are already receiving applications that involve AI-generated material. For example, in 2018, they received an application for a visual work created by an AI algorithm, which was denied because it had no human contribution. In 2023, they approved a graphic novel with human-authored text and AI-generated images, but the individual images couldn’t be copyrighted.

The Office is now providing guidance on how to register works containing AI-generated content and making it clear that human authorship is still a requirement for copyright protection. They’re also working on exploring other copyright issues related to AI and plan to seek public input on these topics later this year.

Human Authorship Requirement

The Copyright Office believes that copyright can only protect material created by humans. The term “author” used in both the Constitution and the Copyright Act refers only to humans, not non-human entities like AI.

In a Supreme Court case, it was decided that a work could be copyrighted if it represented the “original intellectual conceptions of the author.” The court defined an author as someone who creates a work of science or literature and referred to authors as humans or persons.

Federal courts have also agreed that only humans can be authors. For example, a book containing words from non-human spiritual beings can only be copyrighted if there’s human involvement in selecting and arranging the content. Another case stated that a monkey couldn’t register a copyright for photos it took because the Copyright Act refers to terms that imply humanity.

The Copyright Office’s guidance has always required works to be created by humans. They’ve consistently stated that a work must be created by a human being and they won’t register works produced by machines or processes without human creative input.

Application of Human Authorship Requirement

The Copyright Office has experience evaluating works that combine human authorship and uncopyrightable material, like content generated by technology. They check whether the work is mainly created by humans with the technology only assisting, or if the main creative elements were made by a machine, like AI.

For works containing AI-generated content, the Office considers if the AI contributions are just reproductions or if they come from the author’s original ideas. This depends on how the AI tool works and how it was used in creating the final work. Each case is different.

If a work’s main creative elements were made by a machine, the Office won’t register it. For example, when an AI technology receives a prompt from a human and creates something in response, the main creative elements are decided by the AI, not the human. In these cases, the AI-generated material isn’t protected by copyright and must be disclaimed in a registration application.

However, if a work containing AI-generated content also has enough human authorship, it can be copyrighted. A human might select or arrange AI-generated material creatively, or an artist might modify AI-generated material to the point where the changes can be copyrighted. In these cases, copyright only protects the human-authored parts of the work.

This doesn’t mean technology can’t be part of the creative process. What matters is the extent to which humans had creative control over the work and formed its main creative elements.

Guidance for Copyright Applicants

According to the Copyright Office’s policies, applicants must disclose any AI-generated content in a work submitted for registration and provide a brief explanation of the human author’s contributions to the work. This information is important for the Register of Copyrights to understand the work’s preparation or identification and the existence, ownership, or duration of the copyright.

A. Submitting Applications for Works Containing AI-Generated Material

Use the Standard Application to claim copyright protection for your own contributions to a work containing AI-generated content.

Identify the author(s) and provide a brief statement in the “Author Created” field describing the human-authored components.

Do not list AI technology or the company that provided it as an author or co-author.

Exclude AI-generated content that is more than de minimis in the “Limitation of the Claim” section under the “Material Excluded” heading.

Provide additional information in the “Note to CO” field, if necessary.

B. Correcting a Previously Submitted or Pending Application

For pending applications, contact the Copyright Office’s Public Information Office to report any omitted AI-generated material.

For processed applications with a registration, submit a supplementary registration to correct the public record.

In the supplementary registration, describe the original human-authored material, disclaim AI-generated material, and complete the “New Material Added/Other” field.

The Office will issue a new supplementary registration certificate with a disclaimer addressing the AI-generated material if there is sufficient human authorship.

Failing to update the public record may result in losing the benefits of registration, cancellation of the registration, or a court disregarding the registration in an infringement action.

In conclusion

the U.S. Copyright Office has clarified its rules for registering works containing AI-generated content, emphasizing the importance of human authorship in order to be eligible for copyright protection.

This policy statement highlights the historical and legal context that supports the requirement of human authorship and provides guidance for copyright applicants on how to properly submit and, if necessary, correct applications involving works containing AI-generated material. As the use of AI technology in creative works continues to grow, the Copyright Office seeks to maintain a clear framework for copyright protection that respects the original intellectual contributions of human authors.

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