While generative artificial intelligence models such as Midjourney, Dall-E, and Stable Diffusion are taking the internet by storm, legal practitioners are beginning to question the significant legal implications related to the use of such systems. There has already been extensive public debate about AI models that generate new visual, text, and audio content in response to a user’s textual instruction (“prompt”) by drawing from vast quantities of pre-existing human-authored works.
Among the various issues related to this kind of content, the position of generative AI works under copyright law has been a focus.
The U.S. Copyright Office (USCO) provided interesting guidance about whether the material produced by generative AI is protected by copyright, whether works consisting of both human-authored and AI-generated material may be registered, and what information applicants seeking to register such material should provide to the office.
Since 2018, the USCO has been receiving and examining applications for registration that claim copyright to AI-generated material. At first, the USCO denied copyright protection for any visual work that the applicant described as “autonomously created by a computer algorithm running on a machine.”[1] That decision (later confirmed after a series of administrative appeals) was based on the fact that the work was produced “without any creative contribution from a human actor.”[2]
In a recent development, in September 2022 the USCO issued registration for Zarya of the Dawn, a graphic novel that includes human-authored text combined with images created with the assistance of Midjourney. Shortly thereafter, it changed its position as it became aware of public statements on social media attributed to the applicant in which she claimed that she had created the graphic novel using Midjourney. Since the application did not disclose the use of an AI tool, the USCO determined that the application was incorrect, or at least substantially incomplete. In a letter dated October 28, 2022, the USCO notified the applicant that it might cancel the registration if she could not demonstrate substantial human involvement in the creation of the graphic novel. On February 21, 2023, the USCO reissued a decision on the request to register Zarya of the Dawn and concluded that the graphic novel as a whole (intended as a “compilation due to [the author’s] creative selection, coordination, and arrangement of the text and images”) constituted a copyrightable work, but that the individual images themselves, which were created by Midjourney, could not be protected by copyright.[3]
Just a few weeks after the Zarya of the Dawn decision, in response to an increase in applications involving the use of AI to produce expressive works, the USCO provided further guidance on the issue, clarifying that copyright protection only applies to expressive works created by humans.[4] In its guidance, the USCO also explained that it will make case-by-case determinations of the protectability of works involving generative AI models by assessing the individual operating mechanisms applied by the AI models and the extent of their contribution to the final works. More specifically, the USCO distinguished between cases in which AI is used to assist a human author (e.g., by editing an image) and cases in which the human author ultimately lacks creative control over how the AI application responds to prompts and generates content. In the latter scenario, the USCO will also consider whether the AI contributions are the result of a mechanical reproduction or the author’s own original mental conception, subsequently given visible form by the AI.
According to the USCO, it is an applicant’s duty to disclose the type and extent of the use of AI technology in the creative process, and for this purpose the USCO explicitly noted that applicants have been inconsistent in disclosing whether and how they used AI tools to assist in generating their works. As a result, the USCO has launched an agency-wide initiative to examine these issues, and “may issue additional guidance in the future related to registration or the other copyright issues implicated by this technology.”[5]
[1] U.S. Copyright Office Review Board, Decision Affirming Refusal of Registration of a Recent Entrance to Paradise at 2 (Feb. 14, 2022), https://www.copyright.gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf.
[2] Ibid at 2-3. The office’s decision is currently being challenged in Thaler v. Perlmutter, Case No. 1:22-cv-01564 (D.D.C.).
[3] See U.S. Copyright Office, Cancellation Decision re: Zarya of the Dawn (VAu001480196) at 2 (Feb. 21, 2023), https://www.copyright.gov/docs/zarya-of-the-dawn.pdf.
[4] Full text available at: https://www.govinfo.gov/content/pkg/FR-2023-03-16/pdf/2023-05321.pdf.
[5] Ibid.
