The Copyright Office recently released part two of a three part report on the legal and policy issues related to copyright and artificial intelligence.1 This second part addressed the copyrightability of works created using Generative AI.2
There are two fundamental requirements of copyright protection especially relevant to copyright protection over works that have elements created by Generative AI: (1) the requirement of human authorship and (2) copyright law does not protect ideas but rather protects the author's expression of those ideas. Human authorship does not mean someone cannot use the help of a machine, but copyright protection requires sufficient human-authored expressive elements. For example, a photographer can obtain copyright protection for a photograph based upon the photographer's creative contributions such as how the subject is posed and the choice and placement of accessories. An example of the idea/expression dichotomy is that the person who commissions a sculpture is not the author, even if they provide suggestions. However, the person who sketches the design and/or who executes the vision in a tangible medium of expression may be an author.
For Generative AI, the Copyright Office addressed three kinds of human contribution to AI-generated outputs: (1) prompts that instruct an AI system to generate an output; (2) expressive inputs that can be perceived in AI-generated outputs; and (3) modifications or arrangements of AI-generated outputs.
The first, prompts, is the only one with a bright-line rule: prompts alone do not confer copyrightability. The Copyright Office found that prompts essentially function as instructions that convey unprotectible ideas. One of the main issues is that the same prompt can generate an infinite number of different outputs, suggesting a lack of human control. The Copyright Office also found that repeatedly revising prompts does not change this analysis because it is merely "re-rolling the dice" without changing the who/what is making the creative choices.
The second kind of human contribution was expressive inputs that can be perceived in the AI-generated output. This would include, for example, an individual taking their own copyrightable work (such as a drawing) and inputting it into a Generative AI system and instructing the system to modify it in certain ways. In this scenario, the individual would have authorship of at least the expressive elements perceptible in the output. For example, in the images below, a human drew the input and used a prompt3 and AI to generate the output. The registration for the copyright for the output protects the elements clearly perceptible from the input, including the outline of the mask, the position of the nose, mouth, and cheekbones relative to the shape of the mask, the arrangement of the stems and rosebuds, and the shape and placement of the four leaves, but the registration does not protect "the realistic three-dimensional representation of the nose, lips, and rosebuds."
The third kind, modifications and arrangements of AI generated works, may also be protectable. This includes using AI as an initial or intermediate step but then using human authorship to add to the final product. This category may be protectable, on a case-by-case basis, depending on whether the author-added modifications meet the normal standards for copyright protection of originality and fixation in a tangible medium of expression.
If your clients are using or intend to use AI in their business, please consult with a member of TC's IP group for assistance in helping your clients protect their creative work product when they use AI.
Footnotes
2 For purposes of this article, "Generative AI" refers to use of artificial intelligence to generate content based on predictions learned from a data set.
3 Prompt used in the example: "a young cyborg woman (((roses))) flowers coming out of her head, photorealism, cinematic lighting, hyper realism, 8k, hyper detailed."
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