The US Copyright Office has released a policy stating that an AI-generated work may be considered for copyright protection only if a human can demonstrate that they contributed a significant amount of creative effort to the final content. This policy was published on Thursday.
AI software capable of automatically generating images or text has made it easier for individuals to produce content. Consequently, the USCO has experienced a surge in requests for copyright registrations, particularly for artwork created using such tools.
As per US law, intellectual property can be copyrighted only if it is created by humans. As a result, machines and generative AI algorithms are not considered authors, and their outputs cannot be copyrighted.
The US Copyright Office has cautioned that digital art, poems, and books generated using tools such as DALL-E, Stable Diffusion, Midjourney, ChatGPT, or even the latest GPT-4 will not receive copyright protection if they were created by humans solely using a text description or prompt.
In a document outlining copyright guidelines, USCO director Shira Perlmutter stated, “If a work’s traditional elements of authorship were produced by a machine, the work lacks human authorship, and the Office will not register it.”
Perlmutter explained that when AI technology receives only a prompt from a human and produces complex written, visual, or musical works, the “traditional elements of authorship” are determined and executed by the technology itself rather than the human user. As a result, these works will not be considered for copyright registration.
According to the US Copyright Office, prompts for AI-generated works serve as instructions to an artist commissioned to create a piece. While the prompt specifies what the requester desires to be depicted, the machine decides how to implement those instructions in its output.
However, the USCO will consider AI-generated content for copyright protection if a human author has contributed to the final product beyond the machine’s direct output. For instance, digital artwork created from a prompt and then further edited using Photoshop would likely be accepted by the office. Although the initial image created using AI would not be eligible for copyright, the final product produced by the artist could be.
Recently, a copyright certificate was issued for a graphic novel featuring images produced using Midjourney. While the overall composition and text were copyrighted since they were selected and arranged by a human, the individual images were not.
According to the US Copyright Office, in works that include AI-generated content, the office will assess whether the AI contributions are the result of “mechanical reproduction” or an author’s “own original mental conception to which they gave visible form.” The conclusion will depend on various factors, particularly how the AI tool operates and how it was employed to create the final work. This inquiry will be conducted on a case-by-case basis.
Perlmutter recommended that individuals seeking copyright protection for AI-generated material explicitly state how the software was utilized to create the content and identify which parts of the work were authored by humans. If this information is not provided accurately or if an attempt is made to conceal the fact that the content was AI-generated, the USCO may revoke their registration certificate, and their work may not be safeguarded by copyright law.
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