By Edward M. Roney, IV, Intellectual Property

Artificial intelligence (AI) has been a prominent topic recently, especially given the technological advances and commercial realization of generative AI systems.  As AI-generated content continues to proliferate the Internet, concerns remain as to whether AI-generated works can be protected under U.S. copyright laws.  While no definitive statutory law exists outlining whether AI-generated content is copyrightable, the U.S. Copyright Office has taken a conservative position on the issue.  In March 2023, the U.S. Copyright Office issued Copyright Registration:  Works Containing Material Generated by Artificial Intelligence to clarify its positions on whether AI-generated works are copyrightable, whether works that are both human authored and AI generated can be registered with the Office, and if so, what information should applicants provide to the Office.

U.S. Copyright Registration Currently Requires Human Authorship

The Office holds the view that “copyright can protect only material that is the product of human creativity.”  In the current edition of the Compendium of U.S. Copyright Office Practice, the Office states that “to qualify as a work of ‘authorship’ a work must be created by a human being” and that it “will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”  On August 18, 2023, the U.S. District Court for the District of Columbia issued a first-of-its-kind decision in Thaler v. Perlmutter agreeing with the Office that works entirely generated by AI are not copyrightable for lack of human authorship.  The court recognized that “[c]opyright has never stretched so far . . . as to protect works generated by new forms of technology operating absent any guiding human hand,” and as such, “[h]uman authorship is a bedrock requirement of copyright.”

Human Authorship in AI-Generated Works

In works that are both human authored and AI generated, the Office will consider whether “the AI contributions are the result of ‘mechanical reproduction’ or instead of an author’s ‘own original mental conception, to which the author gave visible form,’” with the outcome being determined on a case-by-case basis based on the circumstances and “particularly how the AI tool operates and how it was used to create the work.”  For instance, the Office interprets the prompt in current generative AI technologies as “function[ing] more like instructions to a commissioned artist—they identify what the prompter wishes to have depicted, but the machine determines how those instructions are implemented in its output” and as a result, not protected by copyright.  As such, merely providing inputs to AI technologies to generate a work are likely insufficient to be considered human authorship.  The Office cautioned that “[w]hen an AI technology determines the expressive elements of its output, the generated material is not the product of human authorship.”  As AI continues to evolve, subsequent AI technology may allow for more input and creative control to clearly constitute human authorship as required by the Office.  In the interim, the district court’s decision in Thaler v. Perlmutter will help guide the determination of whether human authorship is a valid prerequisite to copyright registration.

Ownership of AI-Generated Works

Copyright ownership is initially vested in the author(s) of the work.  However, AI-generated works by themselves are currently not copyrightable making the determination of ownership more complex.  Further, AI technology can be trained from external data, including copyrighted material.  All of which can result in multiple parties having potential claims of ownership based on their contributions towards the AI-generated work.  These parties can include the user that provided the inputs to the AI technology that resulted in the AI-generated work, owners of the copyrighted material used to train the AI technology, and the company that created the AI technology itself.  Since AI-generated content is relatively new, U.S. courts have not provided sufficient guidance to date.

Meanwhile, AI companies have assigned certain ownership rights to AI-generated works under contract law.  For instance, Open AI’s Terms of Use describes that:  

You may provide input to the Services (“Input”), and receive output generated and returned by the Services based on the Input (“Output”).  Input and Output are collectively “Content.”  As between the parties and to the extent permitted by applicable law, you own all Input. Subject to your compliance with these Terms, OpenAI hereby assigns to you all its right, title and interest in and to Output. This means you can use Content for any purpose, including commercial purposes such as sale or publication, if you comply with these Terms. OpenAI may use Content to provide and maintain the Services, comply with applicable law, and enforce our policies. You are responsible for Content, including for ensuring that it does not violate any applicable law or these Terms.  (emphasis added).

As such, the user owns the input to the OpenAI services but is conditionally assigned OpenAI’s right, title and interest to the OpenAI-generated work.  What about the rights, title and interest of the owners of the copyrighted material used to train the OpenAI technology?

As evident, the downside of assigning ownership rights in AI-generated works under contract law is that the protection is limited to the parties to the contract.  However, there are other contractual ways to further protect rights associated with the use of AI technology such as by detailing each party’s contributions to the inputs and/or outputs that contribute to the AI work, recognizing what materials were used to train the AI technology, and describing how the AI technology is to be used or not used.

Practice Note: The U.S. Copyright Office has held that copyright applicants have a duty to disclose the inclusion of AI-generated content in works submitted for registration.  The applicants must also include a brief explanation of the human author’s contribution to the AI-generated content.

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2024.