In August 2023, the US District Court for the District of Columbia ruled that an AI-generated work “absent any guiding human hand” is not protected by copyright (Thaler v. Register of Copyrights). The decision affirms a 2022 determination by the US Copyright Office that a work “autonomously created by artificial intelligence without any creative contribution from a human actor” was “ineligible for registration.”1
However, the court acknowledged that Thaler highlights complex questions about whether and under what conditions copyrights might be granted to works that combine inputs from humans and AI systems. In fact, in March of 2023, the US Copyright Office issued a statement of policy on AI indicating that works including “human-authored elements combined with AI-generated images” are copyrightable. Shira Perlmutter, Director of the US Copyright Office, further characterized the Office’s intentions in a House subcommittee hearing on September 27, 2023:
"What we are trying to do is to guide people as to how they can register works that include generative AI outputs. And in that context, we have said they should just disclaim the portion of the work that was generated by AI, and we will issue a registration for the work as a whole, where there is some human authorship."2
To understand how this might work, it is important to first understand the central role that the concept of authorship plays in copyright law. From there, consider three concepts that help to clarify the conditions under which a work containing AI-generated material may be copyrighted.
A Three-Part Test for Determining Copyright Eligibility
According to the US Code, copyright protection is available for “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device” (17 US Code 102).
It is not difficult to see that works created solely by AI could pass the first two requirements outlined above — but not the third.
- Is it “original”? As determined in Feist Publications Inc. v. Rural Telephone Service Co. Inc., a work is original if it is independently created and possesses a minimal degree of creativity. Anything that possesses some creative spark, no matter how crude, humble, or obvious, could meet the bar for originality. A creative work generated solely by AI could pass this test.
- Is it “fixed”? According to 17 US Code 101, a work is considered fixed in a tangible medium if it is embodied such that it can be perceived, reproduced, or otherwise communicated for a meaningful duration (i.e., is not transitory). A creative work generated solely by AI could pass this test as well.
- Is it a “work of authorship”? This is where the complication arises. Under copyright law, authorship is attributed to the creator of the original expression in a work. However, the Trade-Mark Cases determined that copyright only protects “the fruits of intellectual labor” that “are founded in the creative powers of the mind.” As such, a copyright will only be granted if it is determined that a human created the work (Burrow-Giles Lithographic Co. v. Sarony). A creative work generated solely by AI could not pass this test.
According to the Copyright Office’s understanding of generative AI models that are currently available, users do not have sufficient creative control over how AI interprets prompts or generates material. When a generative AI model produces complex written, visual, or musical works in response to a prompt from a human, the “traditional elements of authorship” are determined and executed by the technology, not the human user. Most prompts function like instructions to a commissioned artist, even when prompts are iterative.
Sidebar: Only Humans Can Be Authors
There have been many attempts to extend copyright protections to nonhumans, but none has succeeded. Below, we highlight three cases from years passed that are particularly relevant to generative AI.
- In Naruto v. Slater (2018), the US Court of Appeals for the Ninth Circuit considered a complaint alleging that a monkey was the author and owner of photographs it had taken of itself. The court held that the monkey could not create a copyrightable work because the Copyright Act specifically implies the need for a human author.
- In Kelley v. Chicago Park Dist. (2011), the US Court of Appeals for the Seventh Circuit held that a “living garden” was not copyrightable, in part because “works owing their form to the forces of nature cannot be copyrighted.” Notable for generative AI, the court said the creative elements of the garden, in this case, “originate[d] in nature, not in the mind of the [human] gardener. ”The court specifically stated that because “authorship is an entirely human endeavor,” “[a]uthors of copyrightable works must be human.”
- In Community for Creative Non-Violence v. Reid (1989), the US Supreme Court stated that “[a]s a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection” (emphasis added).
Works Involving AI and Human Authors Could Potentially Be Copyrighted
The law is evolving in this area, and it seems increasingly likely that copyrights could be made available for works that contain material generated by AI if a human contributed to the creation of the work in a way that qualified the human for authorship.
Three concepts are particularly important to understanding the conditions under which this could happen:
- Compilation. If a human selects or arranges AI-generated material in a sufficiently creative way, 17 US Code 101 could apply, meaning “the resulting work as a whole constitutes an original work of authorship.” In a compilation that includes AI-generated material, the computer-generated material will not be protected outside of the compilation.
- Modification. An artist may modify material that was initially generated by AI to such a degree that the changes meet the standard for copyright protection.3 As noted above, the originality threshold under the Copyright Act is low, so a human element added to such AI-created work does not need to be complex or highly sophisticated. 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.
- AI as a tool. The law has long recognized the use of technological tools as part of a human-led creative process. If the AI-generated model functions as a tool and the creativity still comes from a human being using the tool, the output can be protected by copyright. Perlmutter highlighted this point in the September hearing cited above: “To the extent that humans use AI as a tool, that should not affect the protectability of the work. The human author would still be the creator and the work would still be protected by copyright. And using AI as a tool is not something entirely new. It has been used in particular in the music field, for example, for decades in various ways.”4
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In the years to come, the courts and the US Copyright Office will surely consider many cases that will shed new light on the applications of copyright law to works enabled by generative AI. These decisions may increasingly hinge on how AI was used to create the final work and what role humans had in the process. New precedents will likely be set as a result, based on careful case-by-case examinations (as in 17 US Code 103(b)). Based on what we know today, it seems possible that AI could have a role to play in generating material that would be eligible for copyright in the future.
[1] “Second Request for Reconsideration for Refusal to Register A Recent Entrance to Paradise,” Copyright Review Board, Feb. 14, 2022.
[2] “Oversight of the U.S. Copyright Office,“ Subcommittee on Courts, Intellectual Property, and the Internet (September 27, 2023).
[3] According to 17 US Code 101, “A ‘derivative work’ is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ‘derivative work.”’
[4] “Oversight of the U.S. Copyright Office,“ Subcommittee on Courts, Intellectual Property, and the Internet (September 27, 2023).
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