At the end of January, the Copyright Office released part two of its long-awaited report offering guidance on the copyrightability of AI-created works. For those who have been paying close attention over the past year, the Copyright Office’s AI report is essentially just detailing decisions that were made a while ago. However, it is still useful to highlight the key takeaways and break down some of the language to see if it offers any clues to future decisions related to this fast-evolving technology.
The Main Thrust: Prompts Don’t Equate to Authorship
More than anything else, this is probably the biggest takeaway. While the law has been clear for a while now on the fact that AI programs (and their associated companies) cannot claim copyright over the works they generate, there was a significant question related to the ability of users to argue for copyright protection on works generated from the prompts they entered.
The guidance in this report seems to answer that question pretty definitively. Quite simply:
“Based on the functioning of current generally available technology, prompts do not alone provide sufficient control.”
That alone would seem to close the door – at least based on “current generally available technology,” but the report goes further:
“No matter how many times a prompt is revised and resubmitted, the final output reflects the user’s acceptance of the AI system’s interpretation, rather than authorship of the expression it contains.”
In other words, even if you write an incredibly detailed prompt or enter numerous prompts in an attempt to get the system to create something closer to what you want, according to the Copyright Office’s AI report, the final result is still the work of AI and therefore not copyrightable.
What If You Just Use AI Tools to Assist in the Creative Process?
Here is where things get messy. The short version of their guidelines is that any original human parts of a work that also utilizes AI-generated material are eligible for copyright protection.
Let’s break down what they mean by that.
“The use of AI tools to assist rather than stand in for human creativity does not affect the availability of copyright protection for the output.”
There are lots of ways to use generative AI as a tool during the creative process that should not impact the copyrightability of the final work, including brainstorming ideas for what to do and even using it as an outlining tool.
“Copyright protects the original expression in a work created by a human author, even if the work also includes AI-generated material.”
If you have a work where part of the material is completely AI-generated and part of it was created or significantly modified by you, it is possible to receive copyright protection on those parts that show a perceptible human influence.
“Human authors are entitled to copyright in their works of authorship that are perceptible in AI-generated outputs, as well as the creative selection, coordination, or arrangement of material in the outputs, or creative modifications of the outputs.”
This seems to say that even when individual outputs are entirely AI-generated, human authors may be able to receive copyright protection based on how they organize and combine those outputs, as well as for elements that they add or things that they modify in those outputs.
For example, imagine a collage. The individual images are generated by AI, but a human artist then uses their creativity to move those images around to impact how the collage will be seen as a whole. As they do this, perhaps they add in a few images of their own and modify some of the AI images to create a certain effect. The artist cannot get copyright protection on the unchanged individual images generated by AI, but they may be able to receive it on the collage itself and on individual elements they added or altered.
Of course, all of these guidelines then fall under this overriding caveat to anything even partially created with AI receiving copyright protection:
“Whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analyzed on a case-by-case basis.”
What’s Next for AI in the World of Intellectual Property?
This report was part two of three in the Copyright Office’s attempt to clarify existing laws and fill in any legal gaps regarding AI and copyright. Part one in July 2024 recommended the creation of new laws to deal with deepfakes. Part three is set to tackle the enormous question of whether or not it is legal to use copyright-protected works to train AI models.
That last one is likely to cause waves in the IP world, with numerous cases dealing with this exact question pending. What will their guidelines say? I, for one, will be paying very close attention.
If you have any questions about copyright registration or need assistance with protecting your intellectual property, visit our Copyright page to learn more.