IP rights at top of mind as U.S. Copyright Office offers guidance on AI-generated works

On March 16, 2023, the U.S. Copyright Office (the Office) published a statement of policy in the Federal Register¹ offering guidance on who is entitled to protection for works generated with the aid of artificial intelligence (AI) technology. AI tools allow users to generate images, audio, and textual works in response to textual prompts. These tools “learn” how to generate this content by ingesting massive sets of preexisting, human-authored works. Although there are a bevy of potential copyright issues implicated in the use of these tools, the Office’s guidance was limited to its policies with respect to examining and registering material generated by the use of AI technology, referred to as “generative AI.”

How and to what extent the use of AI impacts the ability to secure intellectual property (IP) rights are evolving questions in IP law. Recently, in Thaler v. Vidal², the U.S. Federal Circuit Court analyzed AI inventorship in view of the U.S. Patent Act – ultimately concluding that the Patent Act unambiguously “requires that inventors must be natural persons; that is, human beings.” In Thaler, the AI technology known as “DABUS” used general background knowledge of a technical field to conceive and recognize the utility of inventions without specific guidance from a human being. Thaler has petitioned the U.S. Supreme Court to review this decision arguing that an “individual” inventor may refer to a single entity as opposed to a collective such as a corporation or government.

Relatedly, the Copyright Office confirmed in its March 16 statement that AI cannot be the author of a creative work, noting that it is long settled that copyright protections are limited to the product of human creativity. However, the Office also recognized that AI is a tool that may be used, with sufficient human contribution, to create copyrightable works. In making this point, the Office compared an artist leveraging AI to a photographer using a camera.

While acknowledging that determining what level of human contribution is required to reach registrable status will often require a case-by-case analysis, the Copyright Office provided the following guidance to authors seeking copyright protection for works produced with the assistance of AI:

• Merely providing an AI tool with a prompt, without extending creative control over how the tool interprets the prompt and generates expressive material, will fail to meet the standard for copyright registration.
• The registrant must identify the “traditional elements of authorship” that were executed by a human author and explicitly disclaim the AI-generated content in the application.
• Applicants with existing applications for works that contain AI-generated content who do not disclaim the AI-generated content should correct the application with the Copyright Office’s Public Information Office.
• Authors with existing registrations for works that contain AI-generated content should submit a supplementary registration that disclaims the AI-generated content or risk losing their registration.

The Copyright Office has launched an initiative to examine the policy issues raised by AI including the use of copyright materials in AI training. The office will also be hosting public listening sessions in April and May with artists, creative industries, AI developers and researchers, and lawyers working on these issues.

---

1. "Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence,” 88 Fed. Reg. 16190 (Mar. 16, 2023)
2. Thaler v Vidal, No. 21-2347, 43 F.4th 1207 (Fed. Cir. Aug. 5, 2022)

Client Alert 2023-083