3 Big Takeaways About Copyrightability and Artificial Intelligence

The US Copyright Office (USCO) has released the Part 2 of its report on Artificial Intelligence and Copyright. It looks to try to address the big question surrounding copyrightability and artificial intelligence: can a work created by generative AI be protected by copyright?

Part 1 focused on digital replicas, which can be used to replicate a person’s voice or appearance. Part 2 focuses on the copyrightability of works created by artificial intelligence. Part 3 will address training of AI models on copyrighted works, which may or may not be infringement, so stay tuned for that one as I’ll be looking forward to it.

While generative AI can often have a bad impression from artists, to the point that some game developers and even director James Cameron stating directly to audiences that their creations are made without generative AI, what does the Copyright Office say? What’s the law as it is now?

I read through the report so you don’t have to, so here are 3 big takeaways from the copyright office’s report.

Copyrightability Requires Human Authorship

Whether or not a piece of art created by artificial intelligence can be protected by copyright is an important question. The last thing you want is to make something and then find out later that a part of it, whether that’s a particular sprite or another visual asset in a video game, a song used as background music in a film, or really any other supplemental part of a larger work, is not protectable.

In a previous post on the intellectual property dangers when using AI assets in video game development, we discussed whether or not a work created by artificial intelligence could be protected by copyright.

In that post, we talked about the case of Naruto v. Slater, where the court held that “copyright law only protects ‘the fruits of intellectual labor’ that ‘are founded in the creative powers of the mind’” and that this does not include “works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human-author.” [italics added] 

In other words, the policy up until now has been that copyright only protects human creators.

The USCO’s report reaffirmed this. In order for a work to be protected by copyright, it must be created by a human author.

A Human Author Can be Assisted by Artificial Intelligence

Where things get a little weird is when a human uses AI tools to assist in the creation of the work. What then? Does the use of artificial intelligence at any point invalidate copyrightability? Where is the line?

The Copyright Office’s Report addresses this question concerning copyrightability and artificial intelligence. The main question that will be asked is whether the work is one of human authorship with the computer assisting, or if “traditional elements of authorship in the work (…) were actually conceived and executed not by man but by a machine.”¹

While there is a requirement of human authorship, the USCO did not lay out a bright line. There is no clear level of human authorship, specific tools that can or can’t be used, or level to which a human has to be involved in order for a work to be copyrightable. Such a bright line would be impossible to establish.

Instead, the USCO will take a case-by-case approach to copyrightability. Copyright protection may apply to AI-generated works if there is enough human involvement, such as through edits, arrangements, or other human-added creative decisions. The USCO will look at the specific facts surrounding each work’s creation in order to decide if the human input is enough for copyrightability.

Additionally, works that incorporate AI-generated assets may still be protectable by copyright, even if the specific part that is AI-generated is not. For example, an AI-generated image or song that appears in a film that is otherwise human-created would still mean the overall work is copyrightable, even if the specific elements that are AI-generated are not.

The use of artificial intelligence as a tool does not make a work unprotectable by copyright, but only if the final work contains enough human-authored expressive elements.

Artificial Intelligence Cannot be a “Joint Author” with a Human for Copyrightability

The USCO was clear that artificial intelligence cannot be considered a joint author along with a human for the purposes of copyright. In order for someone to be an author they – once again – cannot be a machine.

However, the copyright office did use the idea of joint authors to look at how much human-created contribution is necessary for copyright. To be a joint author, one must make a copyrightable contribution. Someone who describes to an artist what the work should do or be is not a joint author for the purposes of the Copyright Act. That’s why works made for hire exist! 

In general, just describing an idea isn’t enough. Instead, joint authorship serves to illustrate the level that a human-author has to contribute in order to be considered an author. If you didn’t do enough to be considered an author and the AI did the rest, it’s probably not copyrightable.

AI-Generated Content Based Only on Text Prompts is Not (Currently) Copyrightable

The USCO also decided that a work does not become copyrightable if it was created based on a text prompt, no matter how detailed or complex that prompt is. Again, simply telling someone else to make something does not make you an author, no matter how detailed your instructions are.

At the heart of this conclusion is the idea of adaptation. The process of adapting something from one medium to another will always require creative changes. Adapting a book to a movie will always change things, no matter how much fans of the book lament those changes. When adapting a user’s text prompt to another medium, there is a process of adaptation happening in which creative choices are being made. Since these decisions are outside of the human author’s control, the work can’t be copyrightable.

They also rejected the idea that copyrightability is based purely on the actual work involved. Although a prompter may claim that they spent a great deal of time and effort to craft the perfect prompt to get what they want, that’s not actually relevant to copyrightability. Putting a lot of work into something does not automatically make it protectable!

The report does state that at some point this could change if the way that AI generation works changes to give the user a much higher degree of creative control over the output. However, based on currently existing technology, this is not the case.

Conclusion

While this report does clarify some things, it does not ultimately change a lot. Copyright still only protects works of human authorship.

It’s important when working with these generative AI tools to ensure that there is still human authorship at the forefront of the creative process. Additionally, when working with others as an independent contractor, you should make sure that you are aware of and are contracting around the use of generative AI, or risk putting parts of your work’s copyrightability at risk.

Should you use generative AI as a part of your creative work? If your goal is to have a copyrightable work that you can use, probably not! The Copyright Office recognizes a distinction between human and computer authors. Copyright law only applies to one of these.

There are a lot of nebulous questions and fringe cases that are sure to come up, but for now, the U.S. Copyright Office’s position is that creation is only protectable by copyright when it is a human activity.