March 27, 2023
The U.S. Copyright Office has clarified its examination and registration practices for works that were produced with the assistance of artificial intelligence (“AI”), in a policy statement titled “Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence.” This statement addresses the registration eligibility and application requirements for creative works that were generated by humans working in concert with AI.
In the Office’s view, only material produced by human creativity can be the subject of copyright protections since the term “author” is human specific. Federal appellate courts have affirmed this understanding in cases such as Naruto v. Slater, which have interpreted the Copyright Act to contain human specific language. Accordingly, the Copyright Office’s registration guidance requires that all works be “created by a human being.”
The Office therefore must examine works which contain AI-produced material to determine if the work in question was essentially authored by a human with AI assistance or was in fact produced by an AI. In this determination, the Office will consider if the AI contributions were in fact the author’s “own original mental conception” given “visible form” by the technology. This analysis will be grounded in an examination of the traditional elements of authorship and if they were produced by a human. Artistic works produced by an AI that received merely a prompt from a human are not copyrightable as the prompt is akin to a commission request and therefore the traditional elements of authorship were produced by the AI. However, works based on or otherwise incorporating AI-produced material are not inherently uncopyrightable as AI technology can be implemented much the same way as other artistic tools. A text that was originally produced by an AI but rewritten by a human in a sufficiently creative way is protectable by copyright. Accordingly, while the original AI-generated material is not eligible for registration, sufficiently creative human modification can render the resulting work eligible.
In order for the Office to determine if a human had the requisite creative control over a work’s expression, applicants have an obligation to disclose the use of AI technology and provide a written description of the author’s involvement. In accordance with this policy, applicants must use the standard application and outline the contributions made by the author in the “Author Created” field. For example, when an author has selected, coordinated, and arranged an AI-produced work in a creative manner, the author should disclose both their contributions and the AI-produced nature of the underlying text in the “Author Created” field.
When greater than de minimis portions of the work were created entirely by AI, said sections should be omitted entirely from the “Author Created” field and explicitly excluded from the application. This exclusion may be accomplished by describing the AI-generated content beneath the “Material Excluded” heading of the “Other” field in the “Limitations of the Claim” section. Applicants may clarify or further explain the exact nature of the AI involvement in the work by providing additional information in the “Note to CO” field. Applicants entirely unsure of how to proceed may simply provide a general statement that the work contains AI-generated material and they will be contacted by the Office.
Applicants who have previously submitted applications for works that contain AI-generated material have an obligation to disclose this to the Copyright Office. Pending applications can be modified by contacting the Copyright Office's Public Information Office and notifying them of the application’s omission. This disclosure will be noted on the application and the examiner may contact the applicant for clarification.
Applications that have already registered must be corrected in the public record. This can be accomplished though the submission of a supplementary registration, which describes the original material that the human author contributed in the “Author Created” field, disclaims the AI-generated material in the “Material Excluded/Other” field, and completes the “New Material Added/Other” field. Failure to update the public record may result in the Office taking steps to cancel the registration. Furthermore, a court may disregard the registration in an infringement action under section 411(b) of the Copyright Act if it determines that the registration holder omitted AI involvement or otherwise provided incorrect information to the Copyright Office that would have resulted in a refusal of registration.
The statement from the Copyright Office illustrates a common challenge for agencies responsible for granting IP rights in an evolving technological landscape. The U.S. Patent and Trademark Office has taken a similar stance in recognizing only human inventors for AI-related patent applications. On the other side of this issue, there is also emerging litigation where AI-generated content is subject of copyright infringement lawsuits. Therefore, we will continue to closely track events related to AI-generated content and copyright law since it is reflective of how all AI-generated content and inventions are being treated under existing IP law.
 Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018)
 Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 60