Copyright Registration For Works Containing AI-Generated Material

• Jurisdiction: United States,Federal
• Law Firm: Jenner & Block
• Subject Matter: Intellectual Property, Technology, Copyright, New Technology
• Author: Mr Steven Englund, Julie Ann Shepard, Alison Stein, Jacob Lincoln Tracer, Cayman C. Mitchell and Rupali Srivastava
• Published date: 27 April 2023

The rapid rise in availability, use and performance of generative artificial intelligence ("AI") over the last year is being experienced across industries. Responding to these trends, the US Copyright Office recently published policy guidance on copyright protection and registration of works created using generative AI.¹ Overall, the guidance emphasizes the centrality of human creativity to copyright protection and reflects skepticism that material generated by current AI technologies is entitled to copyright protection. To allow for the Office's examination of works containing AI-generated material, the Office provided instructions for disclosing and disclaiming such material when seeking to register works. Copyright owners will be well served to pay attention to this guidance, summarized below, when registering works, and to consider supplementing any prior registrations for works containing AI-generated material.

Background

Generative AI refers to artificial intelligence systems that use technologies such as large language models, which are "trained" by processing preexisting content and metadata and which can then be used to produce new content in response to user prompts. Although limited systems capable of generating material in response to natural language prompts have been around since the 1960s,² the technology has recently burst into public awareness due to the availability and widespread use of new systems with simple user interfaces capable of creating high-quality outputs in various media, including computer programs, poetry and prose, images, music, videos, and other material.

Creators are using generative AI to supplement, edit, inspire, or even replace their own works of all types. At one end of the spectrum, an AI output may be generated with limited human control and be intended to stand on its own. For example, Stephen Thaler used an AI system to create a visual image, "A Recent Entrance to Paradise." His copyright registration listed the AI as the author, and he stated that the system had "autonomously" created the work. The Copyright Office rejected that application based on its longstanding practice of denying registrations to non-human authors.³ That decision is currently being reviewed in a case pending in the federal District Court for the District of Columbia.⁴

At the other end of the spectrum, creators may have complex interactions with an AI system to realize a creative vision and then modify, reimagine or incorporate the result into a larger work. For example, Kristina Kashtanova used a text-to-image AI system to create illustrations for a comic book. Rather than merely typing one or two prompts to get an image, Kashtanova went through "'hundreds or thousands of descriptive prompts' . . . until the 'hundreds of iterations created as perfect a rendition of her vision as possible.'"⁵ Still, the Office recently cancelled her registration for the book as a whole and issued a new registration covering only the text and the compilation of images in the work.⁶

A wide variety of other uses that combine human and machine authorship are possible and occurring. Potential use cases include using AI to generate:

• a still image used as all or part of the cover art for a human-created work;
• a software module included in a larger program created by human programmers;
• still images used in an audiovisual work otherwise artistically designed and produced by humans;
• sounds that a human mixes with a recording of human musicians and
• a story reworked by a human author.

In each case, the creation of a work in whole or in part using AI raises questions about whether and to what extent the work is protected by copyright. No US judicial decision has addressed...