Suppose you have expressed your work in a tangible form, but it contains material generated by artificial intelligence (AI). Although your copyright exists at the moment of creation, does the work contain enough human authorship on which to base a claim for copyright registration? Should you register the copyright on the work with the U.S. Copyright Office? If there is enough human authorship, the answer is YES!
In the United States, under 17 U.S.C. § 102(a), “Copyright protection subsists, in accordance with this title, in 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”. According to the interpretation of the U.S. Constitution and Supreme Court cases, the “authorship” in the work must be a human and not a non-human.
In the 2021 Compendium of Copyright Office Practices, the U.S. Copyright Office states that “to qualify as a work of ‘authorship’ a work must be created by a human being” and that it “will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.” Suppose your work for copyright registration contains both human-authored material and AI-generated material. Would you be able to register your work as a human author? The answer is a case-by-case inquiry that depends on how the AI tool operates and how it was used to create the final work.
The U.S. Copyright Office has issued a statement of policy to clarify its practices for examining and registering works that contain material generated by artificial intelligence. The statement of policy was issued on March 12, 2023, and entitled “Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence”. In this statement of policy, the U.S. Copyright Office will 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.”
Examples of works that the U.S. Copyright Office will not register include when a human prompts AI technology to produce a written, visual, or musical work. In this case, the human identifies what it wishes to have depicted and the AI technology generates the work such as music in the style of The Rolling Stones. Examples of works that the U.S. Copyright Office will register include when a human selects or arranges AI-generated material in a sufficiently creative way that “the resulting work as a whole constitutes an original work of authorship.” In this case, the AI technology generates the material, but the human selects and arranges the material or modifies the AI-generated material to such a degree that the modifications meet the standard for copyright protection. However, the copyright registration 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.
Let us assume that your work contains human-generated material and AI-generated material. You need to determine whether you have enough human authorship in the work. Once you have determined that there is enough human authorship in the work that contains AI-generated material, you should register your work with the U.S. Copyright Office. However, you have a duty to disclose the inclusion of AI-generated material in the copyright application and provide a brief explanation of the human author’s contributions to the work. To register your work, you should use the Standard Application to identify the human author(s) and provide a brief statement in the “Author Created” field that describes the human authorship. For example, you should not identify the author or co-author as AI technology or the company that provided it. For human authorship, you should fill out the “Author Created” field to claim the portions of your authored work or claim that the “selection, coordination, and arrangement” of the content was created by you, but that the content was created by AI.
In addition, you may exclude the AI-generated material from the Standard Application in the “Limitation of the Claim” section in the “Other” field under the “Material Excluded” heading by providing a brief description of the AI-generated material or identifying the material “generated by artificial intelligence.” You can also provide additional information in the “Note to CO” field in the Standard Application. If you are unsure of how to fill out the Standard Application, you can provide a general statement that the work contains AI-generated material. If there are no questions about human authorship, the U.S. Copyright Office will not contact you. Otherwise, the U.S. Copyright Office will contact you.
Suppose you have already submitted your copyright application for a work that contains AI-generated material. Can you correct your application? The answer is YES. If the copyright application is currently pending, you should contact the Copyright Office’s Public Information Office and report that your application omitted the fact that the work contained AI-generated material. If your copyright application has registered, you should correct the public record by submitting a supplementary registration. In the supplementary registration, you should identify the original human-authored material in the “Author Created” field, disclaim the AI-generated material in the ”Material Excluded/Other” field, and complete the “New Material Added/Other” field. If there are no questions about human authorship, the U.S. Copyright Office will issue a new supplementary registration certificate with a disclaimer addressing the AI-generated material.
Based on the above, you should register your copyright in the work that contains human-generated material and AI-generated material. If your work contains enough human authorship, you should have a valid copyright registration and prevail in a copyright infringement suit. If you fail to identify the AI-generated material in the copyright registration and sue an alleged infringer for copyright infringement, the alleged infringer may argue that you do not have a valid copyright registration. In addition, a court may disregard the copyright registration in an infringement action pursuant to section 411(b) of the Copyright Act if it concludes that you knowingly provided the U.S. Copyright Office with inaccurate information and the accurate information would have resulted in the refusal of the copyright registration. Therefore, it is recommended that you register your copyright in the work that contains human-generated material and AI-generated material and identify the AI-generated material with the U.S. Copyright Office.