Here are my highlights from Works Containing Material Generated by Artificial Intelligence.
One such recent development is the use of sophisticated artificial intelligence (“AI”) technologies capable of producing expressive material.[5] These technologies “train” on vast quantities of preexisting human-authored works and use inferences from that training to generate new content. Some systems operate in response to a user's textual instruction, called a “prompt.” [6] The resulting output may be textual, visual, or audio, and is determined by the AI based on its design and the material it has been trained on. These technologies, often described as “generative AI,” raise questions about whether the material they produce is protected by copyright, whether works consisting of both human-authored and AI-generated material may be registered, and what information should be provided to the Office by applicants seeking to register them.
[I]n 2018 the Office received an application for a visual work that the applicant described as “autonomously created by a computer algorithm running on a machine.” [7] The application was denied because, based on the applicant's representations in the application, the examiner found that the work contained no human authorship. After a series of administrative appeals, the Office's Review Board issued a final determination affirming that the work could not be registered because it was made “without any creative contribution from a human actor.”
In February 2023, the Office concluded that a graphic novel [9] comprised of human-authored text combined with images generated by the AI service Midjourney constituted a copyrightable work, but that the individual images themselves could not be protected by copyright.
In the Office's view, it is well-established that copyright can protect only material that is the product of human creativity. Most fundamentally, the term “author,” which is used in both the Constitution and the Copyright Act, excludes non-humans.
[I]n the current edition of the Compendium, 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.”
Individuals who use AI technology in creating a work may claim copyright protection for their own contributions to that work.
Applicants should not list an AI technology or the company that provided it as an author or co-author simply because they used it when creating their work.