Takeaways

• Human Authorship is Essential for Copyright Protection
• AI as an Assistive Tool Does Not Negate Copyright Eligibility
• Transparency in Disclosures is Crucial

The U.S. Copyright Office has released Part 2 of its comprehensive report on AI, delving into the complex issue of copyrightability for works created using generative AI systems. This eagerly anticipated report addresses the fundamental questions surrounding human authorship, creative control, and copyright protection in an era of rapidly advancing AI technologies. As generative AI continues to reshape creative industries, the Copyright Office’s findings provide crucial guidance on how existing copyright law applies to AI-assisted and AI-generated works.

In its report, the Copyright Office reaffirms several fundamental principles while providing clarity on how existing copyright law applies to works involving AI. Key findings from the report include

• Copyright protection requires human authorship. Purely AI-generated content without sufficient human input is not copyrightable.
• Using AI as an assistive tool does not negate copyright protection for the resulting work. Copyright protects original expression by human authors even if the work incorporates AI-generated elements.
• Prompts alone do not currently provide sufficient human control over AI outputs to qualify for copyright protection. The AI system, not the human user, is largely responsible for determining expressive elements in prompt-based outputs.
• Human-authored expressive inputs that are perceptible in AI outputs may be copyrightable, similar to derivative works. For instance, if elements created by humans—such as text, images, audio, or other copyrightable materials—are still perceptible in the final AI-generated product, they may qualify for copyright protection.
• Creative selection, coordination, arrangement, or modification of AI-generated content by humans may qualify for copyright protection.
• Existing copyright law is deemed adequate to resolve questions of copyrightability for AI-generated works. Thus, no legislative changes are recommended at this time.
• The case has not been made for additional copyright or sui generis protection for AI-generated content beyond existing law.

The guidance emphasizes the importance of human creativity and control in the creation process. Works that incorporate AI-generated elements may still be eligible for copyright protection if they include sufficient human authorship, either through creative selection and arrangement of AI-generated content, substantial modifications to AI-generated material, or human-authored expressive inputs that remain perceptible in the AI-generated outputs

However, the Copyright Office’s stance on prompts is particularly noteworthy. Based on its understanding of current generative AI technologies, the Office does not consider users to exercise ultimate creative control over how AI systems interpret prompts and generate material. This means that the Copyright Office does not necessarily consider expressive elements in AI-generated output to qualify for copyright protection, even if generated in response to a human user’s prompts.

Importantly, the report stresses the need for transparency in the copyright application process. The report reminds Applicants of their duty to disclose the inclusion of AI-generated content in works submitted for registration, not just the use of AI tools.

Thus, while the Copyright Office’s guidance reaffirms the fundamental requirement of human authorship in copyright law, it also recognizes the complex interplay between human creativity and AI assistance. As creators and businesses navigate this evolving landscape, they must carefully consider the balance between leveraging AI capabilities and maintaining sufficient human authorship to secure copyright protection for their works.

If you have any questions about the information in this alert, please contact Mike Word, Diego Freire, or your relationship attorney.