“Based on the Office’s understanding of the generative AI technologies currently available, users do not exercise ultimate creative control over how such systems interpret prompts and generate material.” – USCO Statement of Policy
The U.S. Copyright Office (USCO) has announced a new statement of policy on “Works Containing Material Generated by Artificial Intelligence” that will be published in the Federal Register tomorrow, March 16. The statement comes following several recent cases that have tested the bounds of copyright protection for works generated solely or in part by AI authors.
Most recently, the USCO held in a case involving a graphic novel, Zarya of the Dawn, featuring AI-generated images that the copyright registration would be limited to the text of the novel, which was the product of human authorship. The Office there explained that the “the text of the graphic novel ‘as well as the selection, coordination, and arrangement of the Work’s written and visual elements’ are protectable under copyright law” but that the images themselves were not.
Other cases have been more straightforward. In one case mentioned in the unpublished Federal Register Notice, brought by Stephen Thaler, who has famously attempted to patent AI-generated inventions as well, the Copyright Office denied registration outright, stating that the visual work in question (pictured below) was made “without any creative contribution from a human actor.” Thaler is presently challenging that decision in a district court.
According to the statement of policy, the Office is increasingly being asked to review works created by “generative AI,” which are technologies trained on vast amounts of data that generate “original” content based on prompts from humans. In addition to the more high-profile case examples, the Office said it has also received “applications that have named AI technology as the author or co-author of the work or have included statements in the ‘Author Created’ or ‘Note to Copyright Office’ sections of the application indicating that the work was produced by or with the assistance of AI. Other applicants have not disclosed the inclusion of AI-generated material but have mentioned the names of AI technologies in the title of the work or the ‘acknowledgments’ section of the deposit.”
The statement also indicates the USCO has “launched an agency-wide initiative” to examine the many issues raised by AI-generated works. It is aiming to publish a notice of inquiry seeking public input later this year.
As the recent cases have indicated to this point, the USCO’s statement of policy firmly excludes non-humans from authorship. The Office pointed to various Supreme Court and federal appellate court rulings that have denied attempts to obtain copyright registration for animals and “non-human spiritual beings,” for example. With those cases in mind, as well as its own Compendium of Copyright Office Practices, the Office explained that it will follow the following procedure when reviewing works involving machine authors.
First, the Office will ask, as dictated by the Compendium, “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.”
If a work contains AI-generated material, the Office will first 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.’” This will depend on the particular circumstances, how the AI tool works and how it was used, and will be determined on a case-by-case basis.
If a work is determined to have been created solely by a machine, it will not be registered. The Office gave the example of tools like ChatGPT and Midjourney, which generate complex musical, visual and written works with a simple prompt from a human. “Based on the Office’s understanding of the generative AI technologies currently available, users do not exercise ultimate creative control over how such systems interpret prompts and generate material,” wrote the USCO.
In cases where AI-generated works also contain enough human authorship to support copyright protection, the Office will grant registration:
“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.’ Or an artist may modify material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection. 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.”
This was the scenario under which Kristina Kastanova’s graphic novel, Zarya of the Dawn, received protection.
The Office was also careful to explain that the Policy in no way means that AI tools cannot be used in creating original works. Using the example of Adobe Photoshop for editing images, the USCO has long awarded copyright protection to works created with sophisticated technological tools. “In each case, what matters is the extent to which the human had creative control over the work’s expression and ‘actually formed’ the traditional elements of authorship,” the statement said.
As far as guidance, the Office clarified that applicants have a duty to disclose the use of AI tools in the generation of their works and to provide an explanation of the human author’s contribution in the “Author Created” field. “Applicants should not list an AI technology or the company that provided it as an author or co-author simply because they used it when creating their work,” said the statement.
Applicants should also exclude AI-generated content of any significance, using the “Limitation of the Claim” section.
Finally, the statement instructs applicants who have already submitted applications implicated by the new guidance to correct the information as necessary. For applications that are pending, applicants can contact the Copyright Office’s Public Information Office and report the omitted information, while for applications that have already been processed and registered, a supplementary registration should be submitted. Failure to do so may ultimately result in cancellation of the registration.
Image Source: Deposit Photos
Image ID: 29893499