It seems that all over the news, Artificial Intelligence (AI) dominates the headlines. Copyright is no exception. Given its recent focus on the scope of copyright in an AI-assisted work and in an AI generated work from two-high profile registration cases, the U.S. Copyright Office recently published a Copyright Registration Guidance (Guide) to further explain its examination practices and policies when reviewing registration applications for works containing AI generated material.
The Office cautions that while it is tasked with reviewing the applications, it is ultimately up to the applicants “to disclose the inclusion of AI-generated content in a work submitted for registration and to provide a brief explanation of the human author’s contributions to the work.”
While creators and copyright owners should complete the registration application as truthfully and as accurately as they can, they can do so with the comfort of knowing that a mistake on the registration application will not ultimately invalidate the registration. Also, applicants must remember, that while registration provides many benefits, it is not a necessary requirement for copyright protection because copyright protections are automatic from the moment a copyrighted work is created (regardless of whether or when it is registered with the Office). So if a work is not registered or a registration is deemed to be invalid, it does not mean copyright laws suddenly don’t apply to the work.
Nevertheless, registration is crucial for creators and copyright owners to fully enjoy their rights under the Copyright Act, since registration enables the copyright owner to do things like bring a federal lawsuit and to recover statutory damages in federal court. Since the Office recently granted a copyright registration for portions of an AI-assisted work, it shows that creators can register works created in part using AI. But determining levels of human authorship versus AI generations can be tricky. Based on the Office’s Guide, here are the three takeaways to keep in mind when registering the copyright for an AI-assisted work.
1. Descriptions of Human Authorship on an Application Must Go Beyond Asserting That Creative Prompts Were Entered into an AI Machine
In the Guide, the Office stresses that an applicant must describe the human authorship in the creative elements of the work being registered in the “Author Created” section of the application, and disclaim AI-generated content in the work that is more than de minimis (more on that in takeaway number two).
This is important because a Copyright Office examiner will be analyzing this information and will follow the Office’s policy to refuse registration for a work generated by AI, or for the parts of a work generated by AI, on the basis that AI generated content do not have human authorship.
The Office doubled down on that policy, explaining in the Guide that when it considers the copyright in AI-assisted works it will mainly observe “whether the AI contributions [in the work] are the result of “mechanical reproduction” by the AI or is instead “an author’s ‘own original mental conception, to which [the author] gave visible form.”
The Office illustrates the difference between such “mechanical reproduction” by AI and human authorship in an example where a poem is generated by AI based on a prompt from a human, “write a poem about copyright law in the style of William Shakespeare.” In the example, the Office takes the position that the AI determines the results in the expressive elements of the generated poem like the rhyming pattern, the words in each line, and the structure of the text — not the human who entered the prompt. Later on in the Guide, the Office more explicitly states that entering a prompt (even if the prompt itself may be a creative, copyrightable expression) into an AI machine alone “does not mean that the material generated from a copyrightable prompt is itself copyrightable.” In other words, a registration applicant won’t be able to claim human authorship in AI generated materials or elements in the work by merely stating that they entered prompts into an AI machine.
Some applicants may have difficulty with the Office’s position, as there are arguments that entering certain types of prompts (either one, or many) into an AI machine may result in sufficient creative ideation and control which amounts to human authorship in the AI generated content. But based on the Guide and at least for now, it may be quite difficult for applicants to convince the Office otherwise for registration purposes.
The Office subsequently states that applicants must detail their creative choices made to the AI generated content, such as the creative selection, coordination, and arrangement of that content in the work being registered. For example, if an applicant incorporates AI-generated text into a larger textual work, the Office states that the applicant should “claim the portions of the textual work that is human-authored” (i.e., the creative elements not generated by an AI machine).
2. Applicants Must Disclaim AI-Generated Content in the Work that is More Than De Minimis
As noted previously, the Office also asks applicants to explain what parts of the work should be excluded from the registration application. In its normal registration practices, the Office does ask registration applicants to disclose such information, since the scope of copyright protection for a registered work does not extend to certain parts of a work, like previously published and public domain materials.
Because the Office takes the position that a registration does not cover materials resulting from non-human authorship (i.e., there is no copyright in AI generated content) the Office directs applicants to detail “AI-generated content that is more than de minimis to be excluded from the application.” The Office points applicants to its examination practices on the registration of unclaimable materials and definition of de minimis in its Compendium, which states:
“Creative authorship is deemed “de minimis” when a work does not contain the minimal degree of original, creative expression required to satisfy the originality test in copyright.”
In providing examples, the Office notes that materials like brief quotes and short phrases may fall into that de minimis category. So, for any AI generated materials in a work that falls above that threshold, the Office will look to applicants to describe those disclaimed materials so that the registration can reflect the scope of copyright in the AI-assisted work.
3. Works Containing AI Generated Materials Must Be Registered Using the Standard Application
One of the biggest takeaways from the Guide is that the Office is requiring applicants seeking to register the copyright in their AI-assisted works to only use the Standard Application form. In a footnote, the Office reasons that its other types of application forms currently don’t contain fields where applicants can disclaim unprotectable material, like AI-generated content. As an example, the Office notes that its Single Application “may only be used if ‘[a]ll of the content appearing in the work’ was ‘created by the same individual.’” Presumably, this also means that applicants cannot use the group registration options to register their works that have AI-generated elements. But as more creative communities utilize and develop AI into their works, the hope is that the Office will increase the flexibility of the registration system to accommodate for the registration needs of creative industries and creators who want to register the copyright in their AI-assisted works, beyond the Standard Application, such as those who frequently use the current group registration options.
Just Do Your Best!
If applicants are still unsure of how to fill out the application according to the guidelines the Office set forth, the Office also notes that applicants can simply provide a general statement that the work contains AI-generated material so that the registration examiner can follow up with the applicant. However, this can result in a prolonged examination time because correspondence between the applicant and the Office would lengthen the amount of time it takes for the Office to ultimately issue a copyright registration for the AI assisted work. Taking time to think through the human authorship expressions and AI generated materials will inevitably help an applicant to streamline the registration process. Applicants can also sigh in relief that even if they made a mistake on their application form, their registration won’t be invalidated in court. There are also opportunities to directly reach out the Office to correct pending applications and to file supplementary registration to correct granted registrations.
The Office continues to study the implications of AI in copyright law and will be holding a series of public listening sessions this spring. But with this Guide, they have set a few guideposts to how applicants could register the copyright in AI assisted works. Though authorship issues, especially in AI, can be confusing for applicants to think through, we hope some of the pointers above will help registration applicants along in the process.
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