generated by AI technology to such a degree that the modifications meet the standard for copyright protection.[1] In these cases, copyright 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.[2]
This policy does not mean that technological tools cannot be part of the creative process. Authors have long used such tools to create their works or to recast, transform, or adapt their expressive authorship. For example, a visual artist who uses Adobe Photoshop to edit an image remains the author of the modified image,[3] and a musical artist may use effects such as guitar pedals when creating a sound recording. In each case, what matters is the extent to which the human had creative control over the work’s expression and “actually formed” the traditional elements of authorship.[4]
IV. Guidance for Copyright Applicants
Consistent with the Office’s policies described above, applicants have a duty to disclose the inclusion of AI-generated content in a work submitted for registration and to provide a brief explanation of the human author’s contributions to the work. As contemplated by the Copyright Act, such disclosures are “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.”[5]
A. How To Submit Applications for Works Containing AI-Generated Material
Individuals who use AI technology in creating a work may claim copyright protection for their own contributions to that work. They must use the Standard Application,[6] and in it identify the author(s) and provide a brief statement in the “Author Created” field that describes the authorship that was contributed by a human. For example, an applicant who incorporates AI-generated text into a larger textual work should claim the portions of the textual work that is human-authored. And an applicant who creatively arranges the human and non-human content within a work should fill out the “Author Created” field to claim: “Selection, coordination, and arrangement of [describe human-authored content] created by the author and [describe AI content] generated by artificial intelligence.” Applicants should not list an AI technology or the company that provided it as an author or co-author simply because they used it when creating their work.
AI-generated content that is more than de minimis should be explicitly excluded from the application.[7] This may be done in the “Limitation of the Claim” section in the “Other” field, under the “Material Excluded” heading. Applicants should provide a brief description of the AI-generated content, such as by entering “[description of content] generated by artificial intelligence.” Applicants may also provide additional information in the “Note to CO” field in the Standard Application.
Applicants who are unsure of how to fill out the application may simply provide a general statement that a work contains AI-generated material. The Office will contact the applicant when the claim is reviewed and determine how to proceed. In some cases, the use of an AI tool will not raise questions about human authorship, and the Office will explain that nothing needs to be disclaimed on the application.
B. How To Correct a Previously Submitted or Pending Application
Applicants who have already submitted applications for works containing AI-generated material should check that the information provided to the Office adequately disclosed that material. If not, they should take steps to correct their information so that the registration remains effective.
For applications currently pending before the Office, applicants should contact the Copyright Office’s Public Information Office and report that their application omitted the fact that the work contained AI-generated material.[8] Staff will add a note to the record, which the examiner will see when reviewing the claim. If necessary, the examiner then will correspond with the applicant to obtain additional information about the nature of the human authorship included in the work.
For applications that have already been processed and resulted in a registration, the applicant should correct the public record by submitting a supplementary registration. A supplementary registration is a special type of registration that may be used “to correct an error in a copyright registration or to amplify the information given in a registration.”[9] In the supplementary registration, the applicant should describe the original material that the human author contributed in the “Author Created” field, disclaim the AI-generated material in the “Material Excluded/Other” field, and complete the “New Material Added/Other” field. As long as there is sufficient human authorship, the Office will issue a new supplementary registration certificate with a disclaimer addressing the AI-generated material.[10]
Applicants who fail to update the public record after obtaining a registration for material generated by AI risk losing the benefits of the registration. If the Office becomes aware that information essential to its evaluation of registrability “has been omitted entirely from the application or is questionable,” it may take steps to cancel the registration.[11] Separately, a court may disregard a registration in an infringement action pursuant to section 411(b) of the Copyright Act if it concludes that the applicant knowingly provided the Office with inaccurate information, and the accurate
- ↑ See Compendium (Third) sec. 507.1 (identifying that where a new author modifies a preexisting work, the “new authorship … may be registered, provided that it contains a sufficient amount of original authorship”); see also 17 U.S.C. 101 (defining “derivative work” to include works “based upon one or more preexisting works” where modifications to the work “which, as a whole, represent an original work of authorship”).
- ↑ 17 U.S.C. 103(b).
- ↑ To the extent, however, that an artist uses the AI-powered features in Photoshop, the edits will be subject to the above analysis.
- ↑ Sarony, 111 U.S. at 61.
- ↑ 17 U.S.C. 409(10).
- ↑ The Office’s other types of application forms do not contain fields where applicants can disclaim unprotectable material such as AI-generated content. For example, the Single Application may only be used if “[a]ll of the content appearing in the work” was “created by the same individual.” 37 CFR 202.3(b)(2)(i)(B).
- ↑ The Office does not require applicants to disclaim “brief quotes, short phrases, and other de minimis uses” of preexisting works. Compendium (Third) sec. 503.5.
- ↑ The Public Information Office can be reached through the Office’s website (https://copyright.gov/help/) or by phone at (202) 707–3000 or (877) 476–0778.
- ↑ 17 U.S.C. 408(d); see also Compendium (Third) sec. 1802 (discussing supplementary registration process); U.S. Copyright Office, Circular 8: Supplementary Registration, https://copyright.gov/circs/circ08.pdf (last revised Mar. 2021); 37 CFR 201.3(c)(14) (fee schedule for supplementary registration).
- ↑ Though the supplementary registration certificate will have a new registration number and effective date of registration, the original registration “will not be expunged,” and the two effective dates “will coexist with each other in the registration record” so that a court can determine which date to apply if the copyrighted work is later subject to litigation. 37 CFR 202.6(f)(1)–(2); U.S. Copyright Office, Circular 8: Supplementary Registration, https://copyright.gov/circs/circ08.pdf (last revised Mar. 2021).
- ↑ See 37 CFR 201.7(c)(4). If the work contains human authorship intermingled with AI-created material, the Office may add an annotation to clarify the scope of the claim.
