The US Copyright Office has issued a statement of policy to clarify its practices for examining and registering works that contain material generated by the use of artificial intelligence (AI) technology. 

AI is very much in the news these days, as seemingly every week brings new developments like GPT-4.

Some of these AI engines can produce what humans perceive as “art,” though AI engines are notorious for producing images of “humans” that have excessive numbers of fingers and other anomalies.

As the Copyright Office explained,

These technologies “train” on vast quantities of preexisting human-authored works and use inferences from that training to generate new content. Some systems operate in response to a user’s textual instruction, called a “prompt.” The resulting output may be textual, visual, or audio, and is determined by the AI based on its design and the material it has been trained on. These technologies, often described as “generative AI,” raise questions about whether the material they produce is protected by copyright, whether works consisting of both human-authored and AI-generated material may be registered, and what information should be provided to the Office by applicants seeking to register them.

As we wrote in this recent blog, some owners of the IP used to train AI engines have sued to block such unauthorized uses of their property, and courts may soon be called upon to determine whether such uses should be considered “fair use” under copyright law. 

The Copyright Office is already receiving and examining applications for registration that claim copyright in AI-generated material.

For example, noted the Office, in 2018 it received an application for a visual work that the applicant described as “autonomously created by a computer algorithm running on a machine.” The application was denied because the examiner found that the work contained no human authorship. After administrative appeals, the Office’s Review Board issued a final determination affirming that the work couldn’t be registered because it was made “without any creative contribution from a human actor.”

More recently, Kristina Kashtanova sought and received copyright registration for an 18-page comic book entitled Zarya of the Dawn. On the application, Kashtanova was identified as the sole author of the work.

Kashtanova posted on Instagram:

I got Copyright from the Copyright Office of the USA on my AI-generated graphic novel. I was open how it was made and put Midjourney on the cover page. It wasn’t altered in any other way. Just the way you saw it here.

Midjourney is an AI program that creates images based on text descriptions, but apparently the Registration Specialist at the Copyright Office who approved the copyright registration didn’t know that.

When a reporter contacted the Copyright Office in the wake of the Instagram post, there followed an exchange of letters between the Office and Kashtanova’s lawyer.

Finally, the Office concluded:

Rather than a tool that Ms. Kashtanova controlled and guided to reach her desired image, Midjourney generates images in an unpredictable way. Accordingly, Midjourney users are not the “authors” for copyright purposes of the images the technology generates. As the Supreme Court has explained, the “author” of a copyrighted work is the one “who has actually formed the picture,” the one who acts as “the inventive or master mind.” … A person who provides text prompts to Midjourney does not “actually form” the generated images and is not the “master mind” behind them.

Under the new Copyright Office policy,

applicants have a duty to disclose the inclusion of AI-generated content in a work submitted for registration and to provide a brief explanation of the human author’s contributions to the work.

They must use the Standard Application, and in it identify the author(s) and provide a brief statement in the “Author Created” field that describes the authorship that was contributed by a human. For example, an applicant who incorporates AI-generated text into a larger textual work should claim the portions of the textual work that is human-authored. And an applicant who creatively arranges the human and non human content within a work should fill out the “Author Created” field to claim: “Selection, coordination, and arrangement of [describe human-authored content] created by the author and [describe AI content] generated by artificial intelligence.” Applicants should not list an AI technology or the company that provided it as an author or co-author simply because they used it when creating their work.

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