Copyright Office Affirms its Fourth Refusal to Register Generative AI Work

SURYAST – Source: U.S. Copyright Office letter

On December 11, the Review Board of the U.S. Copyright Office (USCO) released a letter affirming the USCO’s refusal to register a work created with the use of artificial intelligence (AI) software. The decision to affirm the refusal marks the fourth time a registrant has been documented as being denied the ability to obtain a copyright registration over the output of an AI system following requests for reconsideration.

The work in question is a two-dimensional computer-generated image titled “SURYAST” that was created by Ankit Sahni, in part, using a custom-developed software program named RAGHAV. The USCO’s analysis focuses on issues such as lack of human control, contradictory descriptions of the tool (such as whether it is a filter or a more robust generative tool), and whether the expressive elements of the work were human authored.

Meet RAGHAV

Sahni submitted an application to register the work in December 2021 and listed himself and the AI painting app as the two authors. More specifically, Sahni noted an original photograph as part of his authorship, while the software was listed as solely contributing the “2-D artwork.”

In response to the USCO’s request for additional information, Sahni provided a 17-page supplement explaining the technology and how it was used. He explained the process involved use of his original photograph of a sunset along with an image of Vincent van Gogh’s The Starry Night for the “style” to be copied by the AI tool.

In June 2022, the USCO issued its initial refusal to register the work because of the lack of human authorship, noting the inability to separate the human authorship from “the final work produced by the computer program.” It also noted that the work was a “classic example[] of derivative authorship” because, as the Review Board writes, “it was a digital adaptation of a photograph.”

Source: U.S. Copyright Office letter

In September 2022, Sahni requested a reconsideration. He argued “the human authorship requirement does not and cannot mean a work must be created entirely by a human author.” However, the USCO upheld the initial refusal and denied the first request for reconsideration.

The second request for reconsideration came in July 2023 and presented three arguments. The first argument involved an assertion that RAGHAV’s role was only as an “assistive software tool” with ultimate creative control in the hands of Sahni through the selection of his original starting photograph, the inclusion of The Starry Night, and the additional variables under his control. The second argument focused on the human-authored elements in the work that he sought to register. The third argument sought to attack the classification of the machine-generated work as a derivative work due to its lack of substantial similarity and that the “human author’s total creative input in both the original photograph and the Work should be considered together […]”. For example, Sahni pointed to the way in which a painter might sketch on their canvas or a sculptor assembles clay before reaching a final form.

A large portion of the USCO’s analysis is spent exploring the discrepancies between Sahni’s recounting of the creative process and functionality of his tool. The USCO focuses on the level of control Sahni retained over RAGHAV, noting the description provided in the second request for reconsideration “inaccurately minimizes RAGHAV’s role in the creation of the Work and conflicts with other information in the record.”

After reviewing the provided research, the USCO concludes: “RAGHAV’s interpretation of Mr. Sahni’s photograph in the style of another painting is a function of how the model works and the images on which it was trained on—not specific contributions or instructions received from Mr. Sahni.”

Fourth Time, Not the Charm

In June, the USCO reiterated its focus on the application of the de minimis standard when determining whether or not a work that contains generative material is eligible for copyright protection. The standard, taken from the U.S. Supreme Court’s decision in Feist v. Rural Telephone and solidified as policy in the USCO’s Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, requires that “AI-generated content that is more than de minimis should be explicitly [disclosed and] excluded from the application.” The generative material is not protectable and would be considered public domain.

Beginning in February 2022, the Review Board upheld the USCO’s first documented refusal to register “A Recent Entrance to Paradise” when Dr. Stephen Thaler attempted to register the work originally with the AI software as the author and himself as the claimant. The refusal to register was challenged in federal court as part of a continued effort of Thaler and his supporters to exhaust a multitude of legal theories attacking the human authorship requirement that the USCO identified as well-established. As of August, the district court decided in favor of the USCO and leaves Thaler in pursuant of an appeal to overturn the decision.

The second documented refusal to register a generative AI work came in February, following a series of investigations beginning in the fall of 2022 into a previously granted registration of a graphic novel by Kris Kashtanova. The USCO ultimately decided to partially cancel its previously issued registration due to the “randomly generated noise that evolves into a final image” when using the AI-powered text-to-image generation tool Midjourney. Kashtanova has since decided against pursuing a challenge to the partial cancellation, and now works as a Senior Creative Evangelist in AI at Adobe.

In September, the Review Board upheld the USCO’s third documented refusal to register a generative AI work, Théâtre D’opéra Spatial, that became internet famous for winning in the digital arts category at the 2022 Colorado State Fair’s annual fine art competition.

It’s also worth noting that the United States isn’t the first jurisdiction in which Sahni attempted to register the SURYAST work. In 2020, the work was recognized for copyright protection by the copyright office in India when Sahni filed a second application listing himself and the AI software as the authors. The registration later received a withdrawal notice and became subject to an investigation over the use of a machine. Under India’s copyright law, the issue turns on whether or not: (i) AI is capable of meeting the originality requirement, and (ii) the ‘person’, a term that remains undefined in India’s Copyright Act, that is responsible for the computer-generated work (which are recognized under the country’s copyright law) must be a human.

Protecting Partially Generative Derivative Works

An important practical takeaway from this latest development is that the original photograph used as the grounding for a prompt is likely protectable human authorship. Meanwhile, the output of the digital manipulation is not a protectable derivative. This distinction is strategically important for creatives working with generative AI tools.

The USCO has made it clear that generative works are not protectable, and therefore considered public domain. If a copyrightable work is used as the starting point for a finished work that will contain generative material, that may open a loophole (for lack of a better term) to ensuring copyright protection over subsequent exploitations of the finished work, and the portions of the work that may not be entirely human creation.

For example, there may be enough of Sahni’s original photograph contained in the final version of SURYAST to bring claims of infringement if anyone copies, distributes, or otherwise uses the work in an unauthorized manner. It would require Sahni to register the original photograph and meet the other requirements for protection, but theoretically could strengthen any argument against the generative derivative work as being fully in the public domain.

Of course, another key takeaway is that creators should strongly consider having a fully developed legal strategy when communicating with the USCO. This latest letter from the USCO contains critical examples of where changing descriptions of an artistic process, and the tools used, can prove to be detrimental to creators and undermine their attempts to bring clarity as the USCO reviews their application.

Alex Garens of Day Pitney, LLP, is listed as the counsel for Sahni to receive the correspondence with the USCO.