“Where AI merely assists an author in the creative process, its use does not change the copyrightability of the output. At the other extreme, if content is entirely generated by AI, it cannot be protected by copyright.” – Copyright and Artificial Intelligence Part 2, Copyrightability, USCO –
Last week, the U.S. Copyright Office released Part 2 of a planned three-part report on copyright and adjacent IP matters concerning the use of artificial intelligence. The new report expresses the Register’s views about the copyrightability of works when they are produced in some way with the use of AI. In summary, the Office reaffirmed the doctrine that human authorship is required for copyright to attach to a work at all; that copyright should not protect expression created by generative AI; and that the use of assistive AI should not disqualify a work for copyright protection.
Before proceeding, is important to remember that the question of copyrightability, or “authorship,” with AI tools is separate from the legality of unlicensed use of creative works for the purpose of “training” these models in the first place. As argued in other posts, most machine learning (ML) with unlicensed protected works should be held to be mass copyright infringement and should not be exempted under the fair use doctrine. Nevertheless, on the assumption that AI tools for creative work will continue to exist, the question of copyrightable authorship with these technologies is an important and ever-evolving doctrine.
Generative AI (GAI) and Copyrightability
The most difficult copyright question regarding generative AI (GAI) concerns works made with a combination of human-authored and AI-generated expression. As the Office report emphasizes, the question itself defies bright-line guidance because it is inherently a case-by-case, fact-intensive consideration that can only be weighed in the courts. That said, the report expresses a general view that GAI apps do not presently allow the user sufficient control over the expressive results to claim ownership in the outputs.
While the Office recognizes that selection and arrangement of GAI material can meet the threshold for copyrightability, and it leaves open the possibility of technological advancements to enable greater “control” of GAI tools, the report argues that GAI is presently a “roll of the dice” as a creative process. “No matter how many times a prompt is revised and resubmitted, the final output reflects the user’s acceptance of the AI system’s interpretation, rather than authorship of the expression it contains,” the report states. Acceptance is described as “authorship by adoption,” which is roughly the equivalent of claiming copyright in a work one finds rather than creates.
What this means as a practical matter is that creators may claim protection of their expressive contributions to works that include GAI material, but the latter should be considered unprotected and, therefore, disclaimed in a registration application. We shall see whether the courts agree with the Office, most immediately in the case Allen v. Perlmutter where Jason Allen argues that the nature and variety of prompts he used for his visual work were not like rolling dice but were instead deliberate steps toward creating his mental conception of an image.
Regardless of how Allen is decided, it will only be the first major litigation addressing the mixed human/AI question at issue. This highly subjective consideration will remain a case-by-case matter for the foreseeable future, even if certain GAI apps provide greater “control” for users per the Office opinions.
Assistive AI (AAI) Does Not Limit Copyrightability
“The Office agrees that there is an important distinction between using AI as a tool to assist in the creation of works and using AI as a stand-in for human creativity.”
As a creator, I appreciate the Office distinguishing GAI from assistive AI (AAI) and stating that the latter should generally not disqualify works from copyrightability. For instance, if one uses AAI to expedite color correction in a group of photos or to more efficiently check and make grammar recommendations for a manuscript, one need not disclaim the use of AI in these contexts. Likewise, it is important that the Office recognizes that AAI used within a larger work (e.g., to fix a scene or create an effect in a motion picture) is not a basis to limit the protection of the whole work.
While there may be lines inevitably crossed (e.g., an AI suggests, and the writer copies, whole paragraphs in a text), this would arguably be a case when AAI becomes GAI. Nevertheless, resolving protection in this gray area of authorship is likely a matter best left to the courts and not a line easily drawn by the Copyright Office. In practice, even if I did use AAI in my own work, I would not disclaim that use in a registration application, but if I allowed AI to truly write some material, I would disclaim that and not submit a fraudulent application.
Creators should remember that under Unicolors v. H&M, an innocent error on a copyright registration application is not a basis to void the registration. It is important to make a good faith effort to claim the human-made expression and disclaim the AI-generated expression, but the Supreme Court set a precedent that creators should not be penalized for an imperfect understanding of difficult questions of law when submitting an application.
It is understandable, of course, that creators want certainty, but in this report, I think the Office provides sound guidance for the moment while cases like Allen work through the courts. It would not be acceptable to simply default to protecting all GAI material while so much “AI slop” floods the market and, among other things, threatens to undermine the incentive purpose of copyright. For the author using AI in conjunction with her own talents and expressive capacity, we are at the leading edge of this discussion. For context, publishing has existed for a few centuries, but defining “publication” in U.S. copyright law still defies bright-line definition to this day. Hang in there.
