Overview
The Copyright Office has plans to update the Compendium of U.S. Copyright Office Practices to include AI-related registration examples. The Office will also be issuing a report on AI and Copyright, the second section of which will address issues related to copyrightability of works containing AI-generated elements. In the interim, the Office has released guidance on this issue (Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16,190, 16,192 (Mar. 16, 2023) (“AI Registration Guidance”)), and it has published a handful of Review Board decisions regarding particular works that give insight into what the Office will and will not register.
The Office has consistently denied registration to works lacking human authorship. Per the Compendium of U.S. Copyright Office Practices, “The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being … the Office will refuse to register a claim if it determines that a human being did not create the work.” U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 306 (3d ed. 2021). The recent proliferation of generative AI tools has not changed this. Thus, the Office will not register works solely created by AI. The Office takes a more nuanced approach to works that are created in part by AI. As an initial matter, the AI generated aspects will not be protectable even if the overall work merits registration. Applicants are required to disclose (generally, and at a high-level) that AI was used if the AI-generated portions are more than de minimis, and applicants must limit their claims to the non-AI generated aspects. Refusal to do so is grounds for denial. Notably, two Review Board decisions address scenarios where the applicant did not disclose their use of AI, but the Office learned about it anyway.
By way of example, the work below was denied registration. (Second Request for Reconsideration for Refusal to Register Théâtre D’opéra Spatial, Copyright Review Board, SR No. 1-11743923581, September 5, 2023.) The applicant, Mr. Allen, did not disclose to the Office that the image was created using the AI platform, Midjourney. The Office discovered the work’s genesis because it garnered press for being the first AI-generated work to win the 2022 Colorado State Fair’s annual fine art competition. When asked to disclaim the AI generated portion, Mr. Allen refused. Mr. Allen maintained that refusal over the course of two appeals arguing unsuccessfully, among other things, that he authored the underlying image created in Midjourney. The Office disagreed because, notwithstanding the myriad of prompts Mr. Allen entered to generate the image, prompts are not instructions that yield predictable results. Mr. Allen also contended that the Office’s disclosure requirement was burdensome; the Office, however, does not require all of the explicit details regarding the use of AI in creating a work, it merely requires a brief statement.
Where AI is used and disclosed, the Office asks “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.” U.S. Copyright Office, Compendium Of U.S. Copyright Office Practices § 313.2 (3d ed. 2021) (quoting U.S. Copyright Office, Report to The Librarian of Congress by The Register of Copyrights 5 (1966)).
An application to register Suryast was denied for lack of human authorship. (Second Request for Reconsideration for Refusal to Register SURYAST, Copyright Review Board, SR No. 1-11016599571, December 11, 2023). A human, Mr. Ankit Sahni, took the photo and used an AI tool to create a new image based on the photograph and Vincent van Gogh’s The Starry Night. Mr. Sahni also chose the “variable value determining the amount of style transfer.” In other words, he determined how much “Starry Night-ness” the output should have. The Office considered Suryast to be a derivative work of the original photograph. Notably, a registration for a derivative work only protects the new authorship, not the underlying work. Thus, the inquiry was whether the new work, Suryast, contained protectable authorship. Ultimately, the Office concluded that it did not. While Mr. Sahni had control over the input, he did not maintain sufficient control over the output. More specifically, he did not control the stylistic choices made by the AI platform, such as whether the sunset, clouds, and buildings from the original image would be included in the output, how they would appear if they were included, and in what color scheme they would appear. As the new elements in Suryast were authored by the AI, registration was denied.
Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16,190, 16,192 (Mar. 16, 2023).
U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 306 (3d ed. 2021).
U.S. Copyright Office, Compendium Of U.S. Copyright Office Practices § 313.2 (3d ed. 2021).
Second Request for Reconsideration for Refusal to Register Théâtre D’opéra Spatial, Copyright Review Board, SR No. 1-11743923581, September 5, 2023.
Second Request for Reconsideration for Refusal to Register SURYAST, Copyright Review Board, SR No. 1-11016599571, December 11, 2023.
Zarya of the Dawn, U.S. Copyright Office, Registration No. VAu001480196, February 21, 2023.
Second Request for Reconsideration for Refusal to Register A Recent Entrance to Paradise, Copyright Review Board, SR No. 1-7100387071, February 14, 2022 (currently on appeal before the U.S. Court of Appeals for the District of Columbia Circuit).
Professionals
Sara Gruber
Associate
