Copyright Protection for Works Resulting From Some Use of Artificial Intelligence in the United States
17 USC 102(a) provides copyright protection for original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
On the question of what is meant by “original”, the U.S. Copyright Office’s Compendium of Copyright Office Practices, Sections 308 and 308.1, citing the Supreme Court’s decision in Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991), state that “to qualify for copyright protection, a work must be original to the author,” which means that the work must be “independently created by the author” and it must possess “at least some minimal degree of creativity.” Citing the same decision, the compendium goes on to state the term “independent creation” means that the author created the work without copying from other works but “originality” does not require “novelty.”
On the question of what is meant by “fixed”, 17 USC 101 defines “fixed” as follows: A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phono record, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.
This leaves the question of what is a work of authorship. The statute sets out a number of examples, but nowhere explicitly addresses the question of whether a “work of authorship” requires an author and if so, must the author be human.
Recent developments in the field of artificial intelligence have placed these issues front and center.
In Burrow-Giles Lithographic Co. v. Sarony[1], the case that decided that a photographer could be an author, even though a machine (the camera) produced the picture, the Supreme Court defined an “author” as “he to whom anything owes its origin; originator; maker; one who completes a work of science or literature.” In Community for Creative Non-Violence v. Reid[2], Justice Thurgood Marshall noted: “As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.”
The Copyright Office takes the view that only humans can be authors. In a decision of February 14, 2022, the Copyright Review Board held that an artificial intelligence “creativity machine” could not be named as the author of a work because, although the question of works created by artificial intelligence had not previously been considered, courts interpreting the Copyright Act, including the Supreme Court, have uniformly limited copyright protection to creations of human authors. The Copyright Review Board decision has been challenged in an action brought by Thaler before the D.C. District Court.[3] This position contrasts with the position in some other countries where copyright protection is afforded to computer-created works with ownership vested in the party that makes the arrangements for creation of the work.[4]
The question of possible protection for works created jointly by humans and machines is less clear. Applications for registration must name all joint authors.[5] In the Thaler case, the Copyright Review Board noted that it did not need to decide “under what circumstances human involvement in the creation of machine-generated works would meet the statutory criteria for copyright protection”, as the same was not raised as a ground of protection by Thaler. On February 21, 2023, the Copyright Office issued a letter stating that in view of further information that it had received, it would cancel a copyright registration that it had issued for the book “Zarya of the Dawn” and issue a more limited registration for the text, and selection, coordination and arrangement of the work’s written and textual elements. This change was the result of the registrant advising the Office that the visual elements of the book had been created by artificial intelligence and the human elements in producing the book were limited to the features to which the copyright registration would now apply.[6]
On March 16, 2023, the Copyright Office issued guidance on protection for Works Containing Material Generated by Artificial Intelligence.[7] This guidance states that it is well-established that copyright can protect only material that is the product of human creativity. This being the case, the guidance states:
“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. 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. 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.
The key question therefore seems to be how much of the “originality” embodied in the work originated from a human and where, in the context of ‘prompts” provided to the AI does the boundary line lie between a “suggestion:” and a “command”, bearing in mind that 17 USC 102(b) states:
In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle or discovery regardless of the form in which it is described, explained, illustrated or embodied in such work.
[1] 111 U.S. 53, 56 (1884).
[2] 490 U.S. 730 (1989).
[3] Thaler v. Perlmutter Case No. 1:22-cv-01564.
[4] See for example UK Copyright Designs and Patents Act 1988 S.9(3) which creates a 50 year term of protection for computer-created works.
[5] Compendium of U.S. Copyright Office Practices 405.1
[6] The visual elements of the book had been produced using a program called Midjourney which creates images from textual descriptions, but does so in “an unpredictable way” such that the human using the program could not be said to have exercised control over the form of the output, the Copyright Office viewing the prompts provided by the human running the program as more akin to suggestions than orders. The Copyright Office did, however, comment that “it is possible that other AI offerings that can generate expressive material operate differently than (sic) Midjourney does”.
[7] 88 Fed. Reg. 16190