After several months of delays, the U.S. Copyright Office has released part two of its three-part report addressing the copyright concerns raised by artificial intelligence (AI). Titled “Copyrightability,” this section examines whether AI-generated content can be eligible for copyright protection in the U.S.
According to the report, an output generated with the aid of AI can be copyrightable if there is adequate human involvement. The report clarifies that copyright law does not require any changes to support this conclusion. The Supreme Court has explained that individuals are entitled to copyright protection when they translate an idea into a fixed, tangible form. If an AI model generates all of the creative content without any human contribution, there can be no author, and thus, no copyrightable work. However, when an AI model assists a human in expressing their creativity, that human is considered the author. The Copyright Office compares this to joint authorship, noting that a work can still be copyrightable even if one person is not solely responsible for its creation.
The level of human contribution is determined by what the individual provides to the AI model. The Copyright Office argues that simply inputting a prompt is not enough to qualify someone as an author. This is likened to a person hiring an artist: while the person may have a general vision, it is the artist who creates the work. Additionally, because AI models often operate as a “black box,” users cannot exert the necessary level of control to be considered authors themselves.
However, when a user provides a prompt in conjunction with their original work, the resulting AI-generated output can be copyrightable for the material derived from their expression. The user’s own work helps guide the AI and limits the scope of possible outputs.
Lastly, AI-generated content may be eligible for copyright if it is arranged or modified with human creativity. For instance, while an AI-generated image itself may not be copyrightable, a compilation of such images along with a human-written story could qualify for copyright protection. Our DC IP attorneys are keeping an eye on the Copyright Office is currently preparing the third part of its report, which is expected to be published later this year and will explore the consequences of using copyrighted works to train AI models.