Generative AI is happening, and it’s creating images, text, music, and other forms of content right now, as you read this. Some see this technology as a way to maximize human efficiency and productivity, while others view it as an existential threat to humanity. Regardless of where you come down on the issue, the reality is that generative AI is creating new content every day, and there are significant legal and ethical implications.
One of the most vexing questions is who owns the material generated by AI? In other words, if you use AI to create content, is it copyrightable? If you ask ChatGPT, it tells you that:
Not a very clear answer – maybe, and maybe not. Fortunately for content creators, the U.S. Copyright Office issued guidance on the subject on March 16, 2023. The TLDR version is this: works generated solely by AI are not copyrightable, but works generated by humans using AI might be.
The Authorship Requirement in Copyright
In its guidance, the Office reiterated its position that the term “author” excludes non-humans. For this reason, copyright can only protect works that are the result of human creativity. In Article I, Section 8, The Constitution grants Congress the right to provide “authors” with an exclusive right to their “writings.”
The seminal case interpreting these terms is Burrow-Giles Lithographic Co v. Sarony. In that case, Napoleon Sarony had taken photos of Oscar Wilde, which Burrow-Giles Lithographic Company made copies of and marketed. The company’s position was that photographs could not be copyrightable works as they were not “writing” or produced by an “author” – therefore invalidating the Copyright Act Amendment of 1865, which explicitly granted copyright protection to photographs.
The Court rejected this argument, explaining that visual works such as maps and charts had been granted copyright protection since the first Copyright Act of 1790. In addition, even if “ordinary pictures” may simply be the result of a technical process, the fact that Sarony had made decisions regarding lighting, costume, setting, and other issues indicated that Sarony was, in fact, the author of an original work of art that was within the class of works that for which Congress intended to provide copyright protection.
In the opinion, the Court defined an author as “he to whom anything owes its origin; originator; maker; one who completes a work of science or literature.” Futhermore, as the decision repeatedly refers to authors as “persons,” human,” and a copyright as “the exclusive right of a man to the production of his own genius or intellect.”
Relying on this decision as well as subsequent cases, the Copyright Office has required that work have human authoriship in order to be copyrightable.
How the Copyright Office Applies the Authorship Requirement
When the Copyright Office receives a hybrid work that contains both human-created and AI-generated material, it considers whether the contributions of the AI are the result of mechanical reproduction or the author’s own original idea on a case-by-case basis.
The bottom line is that if a work is the result of simply feeding AI a prompt, it will not be copyrightable. From the guidance (footnotes omitted):
For example, if a user instructs a text-generating technology to “write a poem about copyright law in the style of William Shakespeare,” she can expect the system to generate text that is recognizable as a poem, mentions copyright, and resembles Shakespeare’s style. But the technology will decide the rhyming pattern, the words in each line, and the structure of the text. 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.
Importantly, the guidance acknowledges that some works that include AI-generated material will have enough human authorship to qualify for copyright protection. According to the Office, if the material is sufficiently altered in a creative way, the end result could be a work of authorship subject to copyright protection.
Authors Can Use AI Tools to Create Copyrightable Works
The guidance makes clear that authors can create copyrightable works using AI and other technical tools. That said, people applying for copyright registration should disclose their use of AI and explain how the human author contributed to the work.
The emergence of generative AI has brought with it complex legal and ethical questions regarding ownership and copyright of AI-generated works. The recent guidance issued by the U.S. Copyright Office provides some clarity on the matter, but content creators should make an effort to stay informed on this rapidly-evolving area of law.
Note: ChatGPT was used in the editing process – and helped with the conclusion.