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- Dec 16, 2019
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The Copyright Office issues guidance that says that AI generated content made from instructions ("write a poem about copyright law in the style of William Shakespeare") is generally not copyrightable. Substantial human modifications to the content is still copyrightable, but is separately copyrightable and must be mentioned in a copyright application. The application does not mention image-to-image generation (like in Stable Diffusion).
Interesting bits:
[...]
In 2018 the Office received an application for a visual work that the applicant described as “autonomously created by a computer algorithm running on a machine.” [7] The application was denied because, based on the applicant's representations in the application, the examiner found that the work contained no human authorship. After a series of administrative appeals, the Office's Review Board issued a final determination affirming that the work could not be registered because it was made “without any creative contribution from a human actor.” (Id. at 2-3. The Office's decision is currently being challenged in Thaler v. Perlmutter, Case No. 1:22-cv-01564 (D.D.C.).)
More recently, the Office reviewed a registration for a work containing human-authored elements combined with AI-generated images. In February 2023, the Office concluded that a graphic novel [9] comprised of human-authored text combined with images generated by the AI service Midjourney constituted a copyrightable work, but that the individual images themselves could not be protected by copyright.
The Office has received other applications that have named AI technology as the author or co-author of the work or have included statements in the “Author Created” or “Note to Copyright Office” sections of the application indicating that the work was produced by or with the assistance of AI. Other applicants have not disclosed the inclusion of AI-generated material but have mentioned the names of AI technologies in the title of the work or the “acknowledgments” section of the deposit.
Based on these developments, the Office concludes that public guidance is needed on the registration of works containing AI-generated content. This statement of policy describes how the Office applies copyright law's human authorship requirement to applications to register such works and provides guidance to applicants.
The Office recognizes that AI-generated works implicate other copyright issues not addressed in this statement. It has launched an agency-wide initiative to delve into a wide range of these issues. Among other things, the Office intends to publish a notice of inquiry later this year seeking public input on additional legal and policy topics, including how the law should apply to the use of copyrighted works in AI training and the resulting treatment of outputs.
In the Office's view, it is well-established that copyright can protect only material that is the product of human creativity. Most fundamentally, the term “author,” which is used in both the Constitution and the Copyright Act, excludes non-humans. The Office's registration policies and regulations reflect statutory and judicial guidance on this issue.
[...]
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.” 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.” The answer will depend on the circumstances, particularly how the AI tool operates and how it was used to create the final work. 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. For example, when an AI technology receives solely a prompt 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. 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. But the technology will decide the rhyming pattern, the words in each line, and the structure of the text. When an AI technology determines the expressive elements of its output, the generated material is not the product of human authorship. As a result, that material is not protected by copyright and must be disclaimed in a registration application.
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.” Or an artist may modify material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection. 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.
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.”
[...]
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, 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. 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.
The Copyright Office issues guidance that says that AI generated content made from instructions ("write a poem about copyright law in the style of William Shakespeare") is generally not copyrightable. Substantial human modifications to the content is still copyrightable, but is separately copyrightable and must be mentioned in a copyright application. The application does not mention image-to-image generation (like in Stable Diffusion).
Interesting bits:
[...]
In 2018 the Office received an application for a visual work that the applicant described as “autonomously created by a computer algorithm running on a machine.” [7] The application was denied because, based on the applicant's representations in the application, the examiner found that the work contained no human authorship. After a series of administrative appeals, the Office's Review Board issued a final determination affirming that the work could not be registered because it was made “without any creative contribution from a human actor.” (Id. at 2-3. The Office's decision is currently being challenged in Thaler v. Perlmutter, Case No. 1:22-cv-01564 (D.D.C.).)
More recently, the Office reviewed a registration for a work containing human-authored elements combined with AI-generated images. In February 2023, the Office concluded that a graphic novel [9] comprised of human-authored text combined with images generated by the AI service Midjourney constituted a copyrightable work, but that the individual images themselves could not be protected by copyright.
The Office has received other applications that have named AI technology as the author or co-author of the work or have included statements in the “Author Created” or “Note to Copyright Office” sections of the application indicating that the work was produced by or with the assistance of AI. Other applicants have not disclosed the inclusion of AI-generated material but have mentioned the names of AI technologies in the title of the work or the “acknowledgments” section of the deposit.
Based on these developments, the Office concludes that public guidance is needed on the registration of works containing AI-generated content. This statement of policy describes how the Office applies copyright law's human authorship requirement to applications to register such works and provides guidance to applicants.
The Office recognizes that AI-generated works implicate other copyright issues not addressed in this statement. It has launched an agency-wide initiative to delve into a wide range of these issues. Among other things, the Office intends to publish a notice of inquiry later this year seeking public input on additional legal and policy topics, including how the law should apply to the use of copyrighted works in AI training and the resulting treatment of outputs.
In the Office's view, it is well-established that copyright can protect only material that is the product of human creativity. Most fundamentally, the term “author,” which is used in both the Constitution and the Copyright Act, excludes non-humans. The Office's registration policies and regulations reflect statutory and judicial guidance on this issue.
[...]
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.” 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.” The answer will depend on the circumstances, particularly how the AI tool operates and how it was used to create the final work. 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. For example, when an AI technology receives solely a prompt 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. 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. But the technology will decide the rhyming pattern, the words in each line, and the structure of the text. When an AI technology determines the expressive elements of its output, the generated material is not the product of human authorship. As a result, that material is not protected by copyright and must be disclaimed in a registration application.
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.” Or an artist may modify material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection. 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.
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.”
[...]
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, 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. 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.
