The US Copyright Office has released part two of its Artificial Intelligence (AI) Report.

Part one was published in July of 2024 and focused on “digital replicas” of the voice and/or appearance of human beings created using AI. We wrote about part one here, noting that the Copyright Office recommended passage of a federal law that would create a form of property right (similar to other forms of intellectual property) in a person’s digital replica.

In part two, the Copyright Office notes that

the outputs of generative AI can be protected by copyright only where a human author has determined sufficient expressive elements. This can include situations where a human-authored work is perceptible in an AI output, or a human makes creative arrangements or modifications of the output, but not the mere provision of prompts. 

According to the Report,

Most commenters agreed that inputting simple prompts is insufficient to make a user the author of the AI-generated output. Several described prompts as unprotectible ideas or instructions. The American Society of Composers, Authors and Publishers (“ASCAP”), a performing rights organization, asserted that “[w]here a human’s involvement is limited to the simple generation of minimal queries and prompts for an AI tool, the resulting material is not entitled to copyright protection.” The Brooklyn Law Incubator & Policy Clinic asserted that a simple, general prompt lacks “enough human creativity for the output to qualify for copyright protection.” Universal Music Group (“UMG”) stated: “The prompting user is no more an author than someone who tells a musician friend to ‘write me a pretty love song in a major key’ and then falsely claims co-ownership.”

This isn’t really new. In September 2023, the Copyright Office published a decision denying copyright registration for an artwork titled “Théâtre D’opéra Spatial,” generated using the AI tool Midjourney by Jason M. Allen.

The work required more than “simple prompts.” Allen reportedly “input numerous revisions and text prompts at least 624 times to arrive at the initial version of the image.”

The Copyright Office noted that 

the use of AI to assist in the process of creation or the inclusion of AI-generated material in a larger human-generated work does not bar copyrightability. 

[Emphasis added.]

So what does “assist” mean?

In a section of the Report on “Assistive” uses of AI systems, the Copyright Office notes that

Many commenters expressed concern about continuing the longstanding and growing use of computer-assisted tools in the creation process. They pointed to various tasks that have been performed in creative fields for years, some of which now incorporate recent developments in AI, such as “aging” or “de-aging” actors, identifying chord progressions, detecting errors in software code, and removing unwanted objects or crowds from a scene.

Commenters argued to the Copyright Office that these types of uses of AI should not affect the availability of copyright protection for the output, such as a movie.

The Report noted that

While assistive uses that enhance human expression do not limit copyright protection, uses where an AI system makes expressive choices require further analysis. This distinction depends on how the system is being used, not on its inherent characteristics.

[Emphasis added.]

Again, what’s the difference between “enhancing human expressing” and “making expressive choices”?

The Report explains that

the output of current generative AI systems may include content that was not specified and exclude content that was. Although AI technology continues to advance, uncertainty around how a particular prompt or other input will influence the output may be inherent in complex AI systems built on models with billions of parameters. Some observers describe AI as a “black box,” and even expert researchers are limited in their ability to understand or predict the behavior of specific models.

The Report noted that the Recording Academy stated that “[m]any Academy members already use generative AI as a tool to assist them in creating new music,” including through song ideation – i.e., as a brainstorming tool. The Report states that “prompting a generative AI system and referencing, but not incorporating, the output” would not affect the copyrightability of the resulting human-authored work.

(However, this raises the questions of what “referencing” means and why a musician would use AI for brainstorming and then NOT use what the AI generated.) 

The Report also finds that the case has not been made for changes to existing law to provide additional protection for AI-generated outputs.

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