Copyright Office: “Works Containing Material Generated by Artificial Intelligence”

man in yellow crew neck t shirt using vr headset
Photo by Julia M Cameron on Pexels.com

I’m just the messenger! This came out in the Federal Register on March 16, 2023:

The Copyright Office issues this statement of policy to clarify its practices for examining and registering works that contain material generated by the use of artificial intelligence technology. . . .

In the Office’s view, it is well-established that copyright can protect only material that is the product of human creativity. Most fundamentally, the term “author,” which is used in both the Constitution and the Copyright Act, excludes non-humans. The Office’s registration policies and regulations reflect statutory and judicial guidance on this issue.

In its leading case on authorship, the Supreme Court used language excluding non-humans in interpreting Congress’s constitutional power to provide “authors” the exclusive right to their “writings.”?[11] In Burrow-Giles Lithographic Co. v. Sarony, a defendant accused of making unauthorized copies of a photograph argued that the expansion of copyright protection to photographs by Congress was unconstitutional because “a photograph is not a writing nor the production of an author” but is instead created by a camera.[12] The Court disagreed, holding that there was “no doubt” the Constitution’s Copyright Clause permitted photographs to be subject to copyright, “so far as they are representatives of original intellectual conceptions of the author.”?[13] The Court defined an “author” as “he to whom anything owes its origin; originator; maker; one who completes a work of science or literature.”?[14] It repeatedly referred to such “authors” as human, describing authors as a class of “persons”?[15] and a copyright as “the exclusive right of a man to the production of his own genius or intellect.”?[16]

Federal appellate courts have reached a similar conclusion when interpreting the text of the Copyright Act, which provides copyright protection only for “works of authorship.”?[17] The Ninth Circuit has held that a book containing words “authored by non-human spiritual beings” can only qualify for copyright protection if there is “human selection and arrangement of the revelations.”?[18] In another case, it held that a monkey cannot register a copyright in photos it captures with a camera because the Copyright Act refers to an author’s “children,” “widow,” “grandchildren,” and “widower,”—terms that “all imply humanity and necessarily exclude animals.”?[19]

Relying on these cases among others, the Office’s existing registration guidance has long required that works be the product of human authorship. In the 1973 edition of the Office’s Compendium of Copyright Office Practices, the Office warned that it would not register materials that did not “owe their origin to a human agent.”?[20] The second edition of the Compendium, published in 1984, explained that the “term `authorship’ implies that, for a work to be copyrightable, it must owe its origin to a human being.”?[21] And in the current edition of the Compendium, the Office states that “to qualify as a work of `authorship’ a work must be created by a human being” and that it “will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”?[22]

No relation.

Any caveats? Yes, caveats:

As the agency overseeing the copyright registration system, the Office has extensive experience in evaluating works submitted for registration that contain human authorship combined with uncopyrightable material, including material generated by or with the assistance of technology. It begins by asking “whether the `work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.”?[23] 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.”?[24] The answer will depend on the circumstances, particularly how the AI tool operates and how it was used to create the final work.[25] This is necessarily a case-by-case inquiry.

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.[26] For example, when an AI technology receives solely a prompt?[27] 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. . . .

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.”?[33] Or an artist may modify material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection.[34] 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.[35]

Finally:

This policy statement sets out the Office’s approach to registration of works containing material generated by AI technology. The Office continues to monitor new factual and legal developments involving AI and copyright and may issue additional guidance in the future related to registration or the other copyright issues implicated by this technology.

By Ron Coleman

I write this blog.