Recently, the United States Copyright Office published its Report on Copyright and Artificial Intelligence, Part 2: Copyrightability,  the second report in a three-part series. The Office’s reports and additional related resources can be found on the USCO’s Copyright and Artificial Intelligence webpage.

This latest report was the product of longstanding Copyright Office practices, the USCO’s evolving work and registration guidance in this area, rapid technological developments related to Artificial Intelligence, and over 10,000 reply comments to the Office’s August 2023 Notice of Inquiry. Among those commenters, the Authors Alliance submitted both an initial comment and a reply comment in late 2023.  

In our comments, we urged the Copyright Office to not pursue revisions to the Copyright Act at this time and instead work towards providing greater clarity for authors of AI-generated and AI-assisted works (“Instead of proposing revisions to the Copyright Act to enshrine the human authorship requirement in law or clarify the human authorship requirement in the context of AI-generated works, the Office should continue to promulgate guidance for would-be registrants.”) We also noted that, as technology evolves in the coming years, our ideas about the copyrightability of AI-generated and AI-assisted works will likely shift as well.    

We are happy to see that the USCO heard our voice and that of many others regarding no need for legislative change at this time (“The vast majority of commenters agreed that existing law is adequate in this area…”) (Report, page ii). We likewise continue to be aligned with the USCO’s view that works wholly generated by Artificial Intelligence are not copyrightable. In reading through the entirety of the report, it is clear that the Office appreciates that some elements of AI-assisted works will be copyrightable, but believes that the level of human control over the AI output will be central to the copyrightability inquiry (“Whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analyzed on a case-by-case basis.”) (“Based on the functioning of current generally available technology, prompts do not alone provide sufficient control.”) (Report, page iii)

The Office’s report does provide some useful clarity. At the same time, it takes some positions that fail to adequately address the complexity of AI-generated works. Below, we will unpack a number of elements of the report that are noteworthy.  

Modifying or arranging AI-generated content

The report makes it clear that the USCO views selection and arrangement of AI-generated work as a viable path towards copyrightability of works where AI was an element in the creation of the work. In 2023, when reviewing the graphic novel Zarya of the Dawn, “the Office concluded that a graphic novel 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.” (Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, page 2) Thus, authors who incorporate AI-generated work into a larger work will often be successful in registering the whole work, but will typically need to disclaim any AI-generated elements.  

Alternatively, an author who modifies an AI-generated work outside of the AI environment (e.g., an artist who uses Photoshop to make substantial modifications to an AI-generated image), will usually have a path to copyright registration with the USCO. 

The USCO takes the position that most AI-assisted works are not copyrightable

Unlike an AI-generated image later modified manually by a human (which may be copyrightable), when prompt-based modifications to AI generated works are performed entirely within the AI environment, it is clear that the USCO is reluctant to view the resulting work as copyrightable. 

Here, the Office’s position regarding Jason Allen’s attempts to register copyright in the two dimensional artwork Théâtre D’opéra Spatial is illuminating. In developing the image using Midjourney, Allen claimed to have used over 600 text prompts to both generate and alter the image, and further used Photoshop to “beautify and adjust various cosmetic details/flaws/artifacts, etc.,” a process which he viewed as copyrightable authorship.  In denying his claim, the Office responded that “when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the ‘traditional elements of authorship’ are determined and executed by the technology—not the human user.” (88 FR 16190 – Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, page 16192). 

The USCO dismisses the idea that the process of revising prompts to modify AI output is sufficient to claim copyright in the resulting work. (“Inputting a revised prompt does not appear to be materially different in operation from inputting a single prompt. By revising and submitting prompts multiple times, the user is “re-rolling” the dice, causing the system to generate more outputs from which to select, but not altering the degree of control over the process. No matter how many times a prompt is revised and resubmitted, the final output reflects the user’s acceptance of the AI system’s interpretation, rather than authorship of the expression it contains.”) (Report, page 20) (emphasis added).

Within the report, there is no direct examination of the Théâtre D’opéra Spatial copyright claim and lessons to be learned from it. This is likely due to ongoing litigation between Allen and the USCO. While the USCO has significant practical influence on what materials are protectable under copyright, ultimately the decision falls to the courts. So, this suit and others like it will be important to watch.  Still, the lack of a deeper dive into such a real-world example is unfortunate—such examples offer fertile territory for exploring the boundary lines between copyrightable AI-assisted works and those that will remain uncopyrightable.  

The report offers a sense of possibility with regard to copyrightable AI-assisted works

Towards the end of its report, the USCO briefly explores AI platforms that allow for greater control of the final work. Interestingly, they point to specific features of Midjourney, which allows users to select and modify specific regions of an image. The Office views this as meaningfully different from modifying an AI-generated work through prompts alone, but takes no position as to whether that level of control will result in copyrightable works ( “Whether such modifications rise to the minimum standard of originality required under Feist will depend on a case-by-case determination. In those cases where they do, the output should be copyrightable.”) (Report, page 27).   

Unanswered Questions

Despite the complexity of these issues, the Office has been able to draw some bright lines (e.g., see this webinar on Registration Guidance for Works Containing AI-generated Content). 

Yet, the Office also acknowledges that there are remaining unanswered questions (“So I know that everyone in their particular area of creativity is looking for, you know, more examples and brighter lines. And I think at this point in time, we’re going to be learning as everyone else is learning…we will be providing more guidance as we learn more.”) (Webinar Transcript, Robert Kasunic, page 10) This recognition that the USCO, like everyone, is still learning is refreshing and welcome, given that it’s fairly easy to see that there are murky waters all around. AI-generated works are already frequently a complex hybrid of AI expression and human expression. 

What are some of these questions? 

1. The technology is still developing and it seems likely that the legal complexity will become even more pronounced as sophisticated generative AI evolves to respond to fine-grained feedback from users, while also offering expression and suggestions that many users will ultimately adopt. Navigating this complexity will be challenging and will require answering a fundamental question: what is the threshold level of human control over AI-generated expression that is necessary as a prerequisite for copyright protection?  

2. Similarly, what standards might the Copyright Office or the courts develop to prove sufficient human authorship when it is intermingled with AI-generated content? The copyright registration process currently requires very little information and no documentation related to this question. For now, creators don’t have clear guidance on what types of documentation will be most effective if a future dispute arises. 

3. To the extent that protection does exist in human-guided, but AI-produced content, how will or should the courts determine what are uncopyrightable, AI-generated elements in what will appear to users as a single unified work? Separating human expression that is enmeshed and embedded within uncopyrightable AI expression will require some framework for distinguishing the two in cases of infringement. Although the courts have already developed methods that may shape this (selection, filtration, abstraction, for example) it remains far from clear whether such tests will perform adequately for AI-produced content

We will be watching developments in this space closely and will continue to advocate for reasonable and flexible approaches to copyrightability that align with the practical realities of authorship in an emerging technological landscape.