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The constant development of Generative AI in recent years has revolutionized many industries and assisted humans with generating human-like text, images, code, and other content.
While on the one side the use of Generative AI tools has the potential to increase efficiency and drive innovation, on the other side it presents many questions involving intellectual property law, in particular copyright.
Copyright is the intellectual property area most directly affected by the use of Generative AI tools.
1- Who is entitled to copyright ownership?
One of the main principles of copyright law is that it protects original works of authorship created by human beings. That means that copyright protection in the US is available only for human-authored works.
The recent reports of the Copyright Office and the courts have confirmed that works created solely by Generative AI are not protected by copyright law.
2- Partial use of AI
Even though purely AI-generated works are unprotectable, human contributions to works created partially with the assistance of Generative AI may be protectable. If an individual uses Generative AI as a tool to assist in the creation of a work, and the human makes substantial creative choices, the work may be copyrightable.
In 2023, the CopyrightOffice published guidance for copyright applicants explaining what human contributions may qualify for copyright protection. The examples include:
- A sufficiently creative selection and arrangement of AI-generated material so that the resulting work as a whole is an original work of human authorship.
- Modifications made to AI-generated material consisting of sufficiently original authorship to meet the standard for copyright protection.
- A human-authored work that includes some AI-generated materials (for example, a larger textual work with some AI-generated text).
3- What about “Prompts?”
Very often the human involvement in the creation of a work is limited only to creating outputs by providing prompts to a Generative AI system. The Copyright Office has concluded that simply drafting and selecting prompts alone does not provide sufficient human involvement for the works to be protected by copyright.
By submitting prompts, a human does not control how the AI processes the expressive elements of a work in generating the output and converting the ideas into fixed expression, therefore those works do not get copyright.
4- Registering works generated with the assistance of AI.
As long as a work has sufficient human involvement, it can be registered in the Copyright Office. For that purpose, applicants need to describe what exactly the AI-generated content is and disclose the exact type of human contribution.
Applicants should disclaim any non-human expression. They will receive protection only for the human authored portions of the work.
Do you need help navigating the vastly changing world of AI to see how it relates to copyright?
Did you use AI and are not sure if your work can be copyrighted at all?
Before you go any further, let us protect and guide you. The team at Sutter Law is here to lead the way in AI and copyright.
