With the increasing use of artificial intelligence (AI) in creating literary and artistic works, the U.S. Copyright Office has now addressed the issue of the copyrightability of works containing AI-generated materials. After rejecting an application by Dr. Stephen Thaler to register the copyright in a photo created by AI with no human authorship element (Thaler’s appeal is pending), the Copyright Office issued guidance applicable to registered works as well as pending and future copyright applications.* It’s critical that everyone follow the guidance; failure to include the requisite content in an application or to supplement a prior registration could result in the cancellation of a registration or render your copyright unenforceable. The Copyright Office also holds public information sessions and will solicit public comment later this year.

Registration Guidance

Human Authorship Requirement

To start, the Copyright Office reaffirmed its human authorship requirement. The authorship determination depends on the nature of machine input: whether the computer or other device merely assisted the human author or “whether the traditional elements of authorship … were actually conceived and executed not by man but by machine.” (quoting U.S. Copyright Office, Compendium of U.S. Copyright Practices sec. 313.2 (3d. ed. 2021)). As an example, if AI determined the expressive elements based on a human prompt, the work is not considered one created by human authorship and is not copyrightable. However, if an individual selects or arranges the AI-generated material in a sufficiently creative way, or modifies the output to a sufficient degree, there may be sufficient human authorship to support a copyright claim.

Requirements For Past and Current Copyright Applications

Applicants are now required to disclose in their applications any AI-generated content and provide a brief explanation of the human author’s contribution. Any AI-generated content that is more than a tiny portion of the work must be explicitly excluded.

Pending applications must be corrected to conform to the new regulations. Applicants will need to contact the Copyright Office’s Public Information Office should a pending application not adequately disclose any AI-generated content.

For works already registered containing AI-generated material, a supplementary registration will be required describing the original material created by the human author and disclaiming the AI-generated material. Works with sufficient human authorship will be issued a supplementary registration certificate with a disclaimer of the AI-generated content.

Proper disclosure of AI-generated material in an application is essential. Omitting this information can result in the cancellation of your registration or the inability to enforce your copyright in an infringement action if inaccurate information was knowingly provided to the Copyright Office and accurate information would have resulted in the registration being refused.

ZARYA v DAWN (U.S. Copyright Office, Feb. 21, 2023)

Shortly before releasing its guidance, the Copyright Office issued a decision parsing what was copyrightable in a work with both human authored elements and AI-generated content. Upon discovering from social media that the registered comic book included AI generated content, the Copyright Office initiated proceedings to cancel the copyright registration. The Copyright Office determined the selection and arrangement of the images and the text were the result of human authorship and thus copyrightable, but the AI-generated images resulting from human prompts were not. The prompts “influenced, but did not “dictate,” the resulting image, so the applicant was not the “mastermind” and therefore not the author of the images. Further, the applicant’s edits to the images were too minor to be deemed copyrightable.

Copyright Infringement

If the use of an AI tool results in the creation of a work that is substantially similar to a third party’s work, you may be liable for copyright infringement.

Can you be liable for using AI to create a work that is dissimilar to any existing work?

In a pending class action suit brought by artists against AI image providers Stability AI, Midjourney, and Deviant Art, the artists assert that simply using the AI database in the process of creating a work is the basis for an infringement claim.** In February, Getty Images also sued Stability AI for direct copyright infringement based on its copying of Getty Images’ photos.***

The lawsuits allege that defendants’ AI databases contain copyrighted images “scraped” (copied) from the internet, and any work created (“derived”) from these images is necessarily a derivative work. In addition to direct infringement, the Artists’ complaints allege vicarious infringement based on the infringing use of the images by their customers. Defendants counter that the resulting images are not infringing because they are admittedly not substantially similar to the copied works. While these lawsuits may be dismissed for various technical reasons, this issue is sure to be raised again in the future.

Takeaways

To obtain copyright protection for a work containing AI-generated material, the work must have sufficient human input, such as sufficient modification of the AI output or the human selection or arrangement of the AI content. However, copyright protection would be limited to those “human-made” elements.

Past, pending, and future copyright applications need to identify explicitly the human element and disclaim the AI-created content if it is more than minor. For existing registrations, a supplementary registration may be necessary.

Works created using AI are subject to the same copyright infringement analysis applicable to any work. The issue with using AI to create works is that the sources of the original works may not be identified, so an infringement analysis cannot be conducted until the cease-and-desist letter is received. No court has yet adopted the theory that merely using an AI database means the resulting work is automatically an infringing derivative work if it is not substantially similar to the protectable elements in the copyrighted work.

*Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16,190 (March 16, 2023)

**Anderson et al. v. Stability AI Ltd. et al, 3:23-cv-00201 (N.D. Cal.)

***Getty Images (US), Inc. v. Stability AI, Inc., 1:23-cv-00135 (D. Delaware)

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