Tamara S. Pester, LLC
protection, and expressly exclude certain subject matter. To be copyrightable, a work must qualify as an “original work of authorship,” which excludes works produced by non-humans. The fact that not all works will satisfy this standard does not create a “troubling” void of ownership. The Office administers the copyright laws as enacted by Congress and cannot exceed the bounds set by Congress and the Constitution.
Third, the Board rejects Mr. Allen’s argument that requiring AI-generated material to be excluded from the application for the Work improperly “plac[es] a value judgment on the utility of various tools.” Second Request at 6–7. The disclosure of AI-generated material is “information regarded by the Register of Copyrights as bearing upon the preparation or identification of the work or the existence, ownership, or duration of the copyright.” 17 U.S.C. § 409(10). As the Office’s guidance on works containing AI-generated material explained, the Copyright Act permits the Register to identify such information and require its disclosure in copyright applications. AI Registration Guidance, 88 Fed. Reg. at 16,191. This requirement is not a value judgment; it is a recognition of the fact that “[h]uman authorship is a bedrock requirement of copyright.” Thaler, 2023 WL 5333236, at *4.
Fourth, the Board rejects Mr. Allen’s suggestion that the doctrine of “fair use” is relevant to the determination of whether a work is copyrightable. See Second Request at 1, 9–11 (arguing that AI-generated material “merely constitutes raw material which Mr. Allen has transformed”) (citing Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013)). Fair use is a legal doctrine that permits the unauthorized use of copyright-protected works in certain circumstances; it does not address copyrightability, but rather use. To the extent Mr. Allen argues by analogy that his visual edits are “transformative,” and thus, copyrightable, the Board agrees that human-authored modifications of AI-generated material may protected by copyright. See AI Registration Guidance, 88 Fed. Reg. at 16,192–93 (explaining that in many cases, “a work containing AI-generated material will also contain sufficient human authorship to support a copyright claim” because a human author may select, arrange, or modify AI-generated material in a sufficiently creative way). But the Office cannot register Mr. Allen’s human contributions if he does not limit his claim with respect to the AI-generated material.
Finally, the Board dismisses Mr. Allen’s argument that “[r]equiring creators to list each tool and the proportion of the work created with the tool would have a burdensome effect.” Second Request at 8. The Office does not require a detailed disclosure of the specific identity and creative process behind the AI-generated material in a work. The Office’s guidance merely requires applicants to provide a “brief statement” in the application, such as that the text was “generated by artificial intelligence.” See AI Registration Guidance, 88 Fed. Reg. at 16,193. The Office does not intend this requirement to be burdensome, and it does not call for a detailed list of the tools used or the precise proportions of the work that were created by each one.[1]
- ↑ The Office illustrated the simplicity of this requirement in a webinar designed to assist applicants whose works contain material generated by artificial intelligence. See U.S. Copyright Office, Webinar: Registration Guidance for Works Containing AI-Generated Content (June 28, 2023), https://copyright.gov/events/ai-application-process/; see id., Tr. at 11.
-8-
