Tamara S. Pester, LLC
terms that “all imply humanity and necessarily exclude animals.” Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018), decided on other grounds. Most recently, in Thaler v. Perlmutter, the U.S. District Court for the District of Columbia explained:
By its plain text, the 1976 Act … requires a copyrightable work to have an originator with the capacity for intellectual, creative, or artistic labor. Must that originator be a human being to claim copyright protection? The answer is “yes.”
2023 WL 5333236 at *4 (footnote omitted). Because copyright protection is only available for the creations of human authors, “the Office will refuse to register a [copyright] claim if it determines that a human being did not create the work.” U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 306 (3d ed. 2021) (“Compendium (Third)”).
When analyzing AI-generated material, the Office must determine when a human user can be considered the “creator” of AI-generated output. In March 2023, the Office provided public guidance on registration of works created by a generative-AI system. The guidance explained that, in considering an application for registration, the Office will ask “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.” Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16,190, 16,192 (Mar. 16, 2023) (“AI Registration Guidance”) (quoting U.S. Copyright Office, Sixty-Eighth Annual Report of the Register of Copyrights for the Fiscal Year Ending June 30, 1965, 5 (1966)); see also AI Registration Guidance, 88 Fed. Reg. at 16,192 (asking “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.’”) (quoting Burrow-Giles Lithographic Company v. Sarony, 111 U.S. 53, 60 (1884)). This analysis will be “necessarily case-by-case” because it will “depend on the circumstances, particularly how the AI tool operates and how it was used to create the final work.” AI Registration Guidance, 88 Fed. Reg. at 16,192.
If all of a work’s “traditional elements of authorship” were produced by a machine, the work lacks human authorship, and the Office will not register it. Id. If, however, a work containing AI-generated material also contains sufficient human authorship to support a claim to copyright, then the Office will register the human’s contributions. Id. at 16,192–93. In such cases, the applicant must disclose AI-generated content that is “more than de minimis.” Id. at 16,193. Applicants may disclose and exclude such material by placing a brief description of the AI-generated content in the “Limitation of Claim” section on the registration application. The description may be as brief and generic as “[description of content] generated by artificial intelligence.” Id. Applicants may provide additional information in the “Note to CO” field in the online application. Id. Applicants are not required to list the AI tools used in the creation of the work.
Before turning to its analysis of the Work, the Board notes the Office has previously considered the scope of copyright protection of images generated through the use of the tool used by Mr. Allen, i.e., the generative AI system Midjourney. Last year, the Office of Registration Policy and Practice initiated cancellation proceedings for a graphic novel containing images
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