New Copyright Office Guidelines for Works Generated by Artificial Intelligence

Following its recent grant of a registration for Zarya of the Dawn, a comic book incorporating certain images generated by artificial intelligence, the U.S. Copyright Office (“Copyright Office) has issued new Guidance regarding its examination of works containing material that has been generated by artificial intelligence (“AI”), effective as of March 16, 2023.^[1] In sum, works that incorporate material generated by AI may be eligible for copyright protection and registration under certain circumstances, provided that the work contains sufficient human authorship. Applicants seeking to register their works with the Copyright Office now have a duty to disclose any AI-generated material in copyright applications, as well as in existing registrations. Any AI-generated content that is more than de minimis must be excluded from the filing.

Examination of Works: Creative Involvement by a Human Author is Key

In the Guidance, the Copyright Office recognizes that the use of new technological tools, such as AI, as a part of the creative process is commonplace. However, copyright can only protect material that is the product of human creativity. As a result, when evaluating whether a work incorporating AI-generated material is eligible for copyright protection, the Copyright Office will carefully evaluate on a case-by-case basis the involvement of the human author. Works that are primarily authored by a human, with the assistance of AI technology as to certain elements, are more likely to be considered eligible for copyright registration. The opposite will likely result if the technology itself conceived of and executed the expression of the material contained in the work.

The eligibility for copyright protection and registration will also depend on how the AI tool operates and how it was used to create the work. A work created by an AI tool that implements instructions and generates outputs based on simple prompts from a human author, is likely not to be considered eligible for copyright protection. On the other hand, if a human author sufficiently modifies material that was created with AI, or otherwise selects or arranges the AI-generated material in a sufficiently creative way, the resulting work may support a copyright claim.

Copyright Applicants and Their Duty to Disclose AI-Generated Material

The Guidance establishes a duty for all applicants to disclose any AI-generated material in applications to the Copyright Office, as well as to provide an explanation as to the human author’s contribution(s). Only human-authored material is registrable; the AI-generated material that is more than de minimus must be disclaimed and excluded from copyright protection. Applicants can exclude this material in the application under the “Limitation of the Claim” section of the form. Notably, just because a human author used an AI tool to assist in the creation of a work does not mean that the AI tool, or the company that provides the AI tool, is a co-author of the work. In fact, the Guidance specifically states that the AI tool should not be listed as a co-author in that circumstance.

Applicants with pending applications, and copyright owners with registrations, for works that include AI-generated material are not excluded from this duty. For pending applications, applicants need to contact the Copyright Office’s Public Information Office to report that the applications contain AI-generated material. Registration owners must correct the public record by filing a supplementary registration, which is a type of registration that is used to correct an error or amplify information in a registration. The supplementary registration must describe the material created by the human author and disclaim the AI-generated material. The new supplementary registration certificate will issue provided that there is sufficient human authorship of the work. As with supplementary registrations generally, the original registration will remain of record and the two registrations will coexist in the event of future litigation.

Crucially, copyright registration owners who fail to update the public record for works generated by AI risk having their registrations cancelled. Moreover, such a registration owner risks having a court disregard the owner’s copyright registration in an infringement action, if the court determines that the owner knowingly provided the Copyright Office with inaccurate information that would otherwise have resulted in refusal of the registration.

Looking Ahead

Owners of pending applications and existing registrations for works incorporating AI-generated material should take action now to update their filings to disclose and disclaim the AI-generated content, so as to prevent a loss of rights. Applicants for works created with AI should expect and be prepared to respond to inquiries from examiners regarding the nature of the AI tool, and exactly how that tool was used in the preparation of the work.

The Copyright Office has launched an initiative to examine copyright law and policy issues raised by AI in the creative process, which will include a series of listening sessions over the coming weeks. Given the rapidly emerging technologies in this area, we expect that the law and policies regarding the treatment of AI-generated content will continue to evolve.