copyright protection if there is “human selection and arrangement of the revelations.”[1] In another case, it held that a monkey cannot register a copyright in photos it captures with a camera because the Copyright Act refers to an author’s “children,” “widow,” “grandchildren,” and “widower,”—terms that “all imply humanity and necessarily exclude animals.”[2]
Relying on these cases among others, the Office’s existing registration guidance has long required that works be the product of human authorship. In the 1973 edition of the Office’s Compendium of Copyright Office Practices, the Office warned that it would not register materials that did not “owe their origin to a human agent.”[3] The second edition of the Compendium, published in 1984, explained that the “term ‘authorship’ implies that, for a work to be copyrightable, it must owe its origin to a human being.”[4] And in the current edition of the Compendium, the 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.”[5]
III. The Office’s Application of the Human Authorship Requirement
As the agency overseeing the copyright registration system, the Office has extensive experience in evaluating works submitted for registration that contain human authorship combined with uncopyrightable material, including material generated by or with the assistance of technology. It begins by asking “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.”[6] In the case of works containing AI-generated material, the 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.”[7] The answer will depend on the circumstances, particularly how the AI tool operates and how it was used to create the final work.[8] This is necessarily a case-by-case inquiry.
If a work’s traditional elements of authorship were produced by a machine, the work lacks human authorship and the Office will not register it.[9] For example, when an AI technology receives solely a prompt[10] from a human and produces complex written, visual, or musical works in response, the “traditional elements of authorship” are determined and executed by the technology—not the human user. 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. Instead, these prompts function more like instructions to a commissioned artist—they identify what the prompter wishes to have depicted, but the machine determines how those instructions are implemented in its output.[11] For example, if a user instructs a text-generating technology to “write a poem about copyright law in the style of William Shakespeare,” she can expect the system to generate text that is recognizable as a poem, mentions copyright, and resembles Shakespeare’s style.[12] But the technology will decide the rhyming pattern, the words in each line, and the structure of the text.[13] When an AI technology determines the expressive elements of its output, the generated material is not the product of human authorship.[14] As a result, that material is not protected by copyright and must be disclaimed in a registration application.[15]
In other cases, however, a work containing AI-generated material will also contain sufficient human authorship to support a copyright claim. 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.”[16] Or an artist may modify material originally
- ↑ Urantia Found. v. Kristen Maaherra, 114 F.3d 955, 957–59 (9th Cir. 1997) (internal punctuation omitted) (holding that “some element of human creativity must have occurred in order for the Book to be copyrightable” because “it is not creations of divine beings that the copyright laws were intended to protect”). While the compilation of the book was entitled to copyright, the alleged “divine messages” were not. Id.
- ↑ Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018), decided on other grounds.
- ↑ U.S. Copyright Office, Compendium of U.S. Copyright Office Practices sec. 2.8.3(I)(a)(1)(b) (1st ed. 1973), https://copyright.gov/history/comp/compendium-one.pdf (providing example of shapes formed by liquid petroleum); see also U.S. Copyright Office, Sixty-Eighth Annual Report of the Register of Copyrights for the Fiscal Year Ending June 30, 1965, at 5 (1966), https://www.copyright.gov/reports/annual/archive/ar-1965.pdf (noting that computer-generated works raise a “crucial question” of whether the work “is basically one of human authorship”).
- ↑ U.S. Copyright Office, Compendium of U.S. Copyright Office Practices sec. 202.02(b) (2d ed. 1984), https://www.copyright.gov/history/comp/compendium-two.pdf (explaining that as a result, “[m]aterials produced solely by nature, by plants, or by animals are not copyrightable”). It went on to state that because “a work must be the product of human authorship,” works “produced by mechanical processes or random selection without any contribution by a human author are not registrable.” Id. at 503.03(a).
- ↑ U.S. Copyright Office, Compendium of U.S. Copyright Office Practices sec. 313.2 (3d ed. 2021) (“Compendium (Third)”).
- ↑ Id. (quoting U.S. Copyright Office, Sixty-Eighth Annual Report of the Register of Copyrights for the Fiscal Year Ending June 30, 1965, at 5 (1966)).
- ↑ Sarony, 111 U.S. at 60.
- ↑ Many technologies are described or marketed as “artificial intelligence,” but not all of them function the same way for purposes of copyright law. For that reason, this analysis will be fact specific.
- ↑ This includes situations where an AI technology is developed such that it generates material autonomously without human involvement. See U.S. Copyright Office Review Board, Decision Affirming Refusal of Registration of a Recent Entrance to Paradise at 2–3 (Feb. 14, 2022), https://www.copyright.gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf (determining a work “autonomously created by artificial intelligence without any creative contribution from a human actor” was “ineligible for registration”).
- ↑ While some prompts may be sufficiently creative to be protected by copyright, that does not mean that material generated from a copyrightable prompt is itself copyrightable.
- ↑ One image-generating AI product describes prompts as “influencing” the output but does not suggest the prompts dictate or control it. See Prompts, Midjourney, https://docs.midjourney.com/docs/prompts (explaining that short text prompts cause “each word [to have] a more powerful influence” and that images including in a prompt may “influence the style and content of the finished result”) (emphasis added).
- ↑ AI technologies do not always operate precisely as instructed. For example, a text-generating tool prompted to provide factual information may provide inaccurate information. One AI service describes this as the AI “mak[ing] up facts or ‘hallucinat[ing]’ outputs.” ChatGPT General FAQ, OpenAI, https://help.openai.com/en/articles/6783457-chatgpt-general-faq. See also James Romoser, No, Ruth Bader Ginsburg did not dissent in Obergefell—and other things ChatGPT gets wrong about the Supreme Court, SCOTUSblog (Jan. 26, 2023), https://www.scotusblog.com/2023/01/no-ruth-bader-ginsburg-did-not-dissent-in-obergefell-and-other-things-chatgpt-gets-wrong-about-the-supreme-court/.
- ↑ Some technologies allow users to provide iterative “feedback” by providing additional prompts to the machine. For example, the user may instruct the AI to revise the generated text to mention a topic or emphasize a particular point. While such instructions may give a user greater influence over the output, the AI technology is what determines how to implement those additional instructions.
- ↑ See id. at 61 (quoting British decision by Lord Justice Cotton describing an author as the person “who has actually formed the picture”).
- ↑ See Compendium (Third) sec. 503.5 (a copyright registration “does not cover any unclaimable material that the work may contain,” and applicants “should exclude that material from the claim”).
- ↑ 17 U.S.C. 101 (definition of “compilation”). In the case of a compilation including AI-generated material, the computer-generated material will not be protected outside of the compilation.
