Artificial Intelligence Developments in Copyright

In a world where artificial intelligence (“AI”) technology is on the rise and chatbots like ChatGPT gain popularity, the intellectual property sector has been tasked with determining how to handle the work product of AI. In response to these technological developments, on March 16, 2023, the U.S. Copyright Office launched a new initiative focused on examining the copyright law and policy issues that are raised by the use of AI. The initiative was accompanied by registration guidance published in the Federal Register, specifically addressing the Copyright Office’s practices for examining and registering works that contain material generated using AI technology.

The main issue relies on the fact that a copyright can only protect material that is the product of human creativity. Relying on case law, the Copyright Office compared this situation to a photographer using a camera. In Burrow-Giles Lithographic Co. v. Sarony, the Supreme Court held that photographs, despite being taken through a camera, were permitted subjects of copyright, “so far as they are representatives of original intellectual conceptions of the author.” Further, the Court placed emphasis on the “author” being human and that copyright is “the exclusive right of a man to the production of his own genius or intellect.”

The Copyright Office identified the baseline question as, “whether the ‘work’ is basically one of human authorship, with the computer [or other device] barely being an assisting instrument, or whether the traditional element 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.” The Copyright Office likens the use of generative AI technologies as giving instructions to a commissioned artist. You can give the technology a prompt, but ultimately the machine, much like an artist, will determine how those instructions will be implemented in the final product. As such, 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.

The Copyright Office’s guidance will thus result in a case-by-case analysis of each application, identifying what, if any, portion of the work produced using AI technology is copyrightable material. To that end, the Copyright Office outlined several steps an applicant must take if they used AI technology to create a work, wherein they are claiming copyright protection for their own contributions:

1. Use the Standard Application
2. Identify Human Authors: Applicants should identify authors who contributed to the work. Neither the AI technology nor the owner of the AI technology should be listed as authors.
3. Provide a Brief Statement of Authorship: Applicants should provide a brief description of the authorship that was contributed by a human.
4. Disclaim AI-Generated Content: Applicants should provide a brief description of the AI-generated content. This may be achieved by disclosing, ‘‘[description of content] generated by artificial intelligence,’’ or similar.