r a work in the U.S., the Guidance and recent Board decisions illustrate the importance of human contribution to the expressive elements of a work to a finding in favor of copyright protection. The Board’s decisions in “A Recent Entrance to Paradise,” “Théâtre D’opéra Spatial,” and “SURYAST” confirm that the U.S. Copyright Office will not register works that list AI as an author or co-author. This position differs from the Indian Copyright Office, which registered the “SURYAST” work in 2021, recognizing the AI-based tool RAGHAV as a co-author of the work.11Therefore, to improve the copyrightability and registrability of a work containing AI-generated content in the U.S., creators should be mindful of the effects of AI generation on the copyrightability of their works, strive to incorporate expressive elements originating from a human author, and document those human-originated elements.[1] Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16190, 16193 (Mar. 16, 2023) [hereinafter Guidance].[2] Guidance at 16192.[3] Second Request for Reconsideration for Refusal to Register Théâtre D’opéra Spatial (SR # 1-11743923581; Correspondence ID: 1-5T5320R), at 6 (U.S. Copyright Off. Rev. Bd. Sept. 5, 2023) (refusal affirmed), https://www.copyright.gov/rulings-filings/review-board/docs/Theatre-Dopera-Spatial.pdf[4] Id. at 7 (quoting Guidance at 16192).[5] Id. at 8.[6] Id. (“[T]he Office cannot register Mr. Allen’s human contributions if he does not limit his claim with respect to the AI-generated material.”)[7] Second Request for Reconsideration for Refusal to Register SURYAST (SR # 1-11016599571; Correspondence ID: 1-5PR2XKJ), at 2 (U.S. Copyright Off. Rev. Bd. Dec. 11, 2023) (refusal affirmed), https://www.copyright.gov/rulings-filings/review-board/docs/SURYAST.pdf[8] Id.[9] Id. at 7.[10] Id.[11] Sukanya Sarkar, Exclusive: India recognizes AI as co-author of copyrighted artwork, ManagingIP, (Aug. 5, 2021), https://www.managingip.com/article/2a5czmpwixyj23w

icy with the issuance of an executive order that directs the USPTO to publish new guidance within 120 days on inventorship and the use of AI. Under the order, the USPTO’s guidance is to include examples of how the involvement of AI tools in the inventive process should be analyzed in patent examination. Therefore, during the first quarter of 2024, important new guidance can be expected from the USPTO that should clarify for inventors and patent practitioners how technology involving AI will be evaluated.Effects in second IP arenaCopyright is another area in which existing law appears to be evolving to meet new demands created by generative AI. In March 2023, the US Copyright Office issued a statement clarifying that it will not register works “when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response” because “the ‘traditional elements of authorship’ are determined and executed by the technology — not the human user” (88 Fed. Reg. 16190, 16192 (March 16, 2023)). The Copyright Office also launched a new AI initiative in early 2023 “to examine the copyright law and policy issues raised by [AI], including the scope of copyright in works generated using AI tools and the use of copyrighted materials in AI training.”After conducting listening sessions with artists, creative industries, AI developers, and the legal community, the Copyright Office published a notice in the Federal Register on Aug. 30, 2023, requesting information and views relating to issues raised by the recent advances in generative AI (88 Fed. Reg. 59942 (Aug. 30, 2023)). The notice asked for comments on a host of issues, such as whether there are circumstances in which a human using a generative AI system should be considered the “author” of the system’s output; whether AI-generated outputs implicate the exclusive rights of authors in preexisting works; and what legal rights should apply to AI-generated material that uses a particular person’s name or likeness or that imitates

nical reproduction" or from a (human) author’s "own original mental conception" on a case-by-case basis.While it is clear that this is an area of the law that is still evolving, the Thaler ruling has important implications for the creative industries. Companies and content creators using AI tools to produce artwork will need to ensure that there is sufficient human involvement in the creative process to claim copyright protection. This could make it more difficult to commercially exploit AI-generated artworks, and is likely to raise challenges for copyright enforcement. As the use of AI technology increases and develops, further judicial insight and input from the Office will be welcome and anticipated.Footnotes1.Thaler v. Perlmutter, _ F. Supp. 3d _, 2023 WL 5333236, at *10 (D.D.C. Aug. 18, 2023).2.Naruto v. Slater, 888 F.3d 418, 420 (9th Cir. 2018).3. Thaler, 2023 WL 5333236, at *4.4.See Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16190 (Mar. 16, 2023).

U.S. copyright law protects human-authored expression, not works generated purely by generative AI. When a human author uses generative AI tools to create their work, the scope of copyright protection extends to the human-authored aspects of the work, not the AI-generated material within that work. The ability to separate out AI-generated content from the human content poses challenges at both the registration stage and the enforcement stage, with a set of related but distinct issues.Applying for Copyright RegistrationWhen registering a copyright, “the applicant has a duty to disclose the inclusion of AI-generated content in [the] work” and “provide a brief explanation of the human author’s contributions to the work.” 88 FR 16190. Completing the application consistent with this duty is relatively straightforward:In the Authors field, only identify human authors of the work being registered.In the Author Created field, briefly describe the author’s contribution.In the Material Excluded field of the “Limitation of the Claim,” briefly describe the AI-generated content.For example, the Author Created field can claim “selection, coordination, and arrangement of text created by the author with AI-generated text,” and the Material Excluded field can disclaim “AI-generated text.” That’s it.Right now, the application does not formally require a detailed explanation of how generative AI was used or a specific identification of the AI-generated elements of the work. This is consistent with the Copyright Office’s practices for registering computer code, a type of work that is (almost) always created by combining preexisting and new content. It can be enough to identify “computer program” as the new matter and “computer pr

principle or discovery regardless of the form in which it is described, explained, illustrated or embodied in such work.[1]  111 U.S. 53, 56 (1884).[2] 490 U.S. 730 (1989).[3]Thaler v. Perlmutter Case No. 1:22-cv-01564.[4] See for example UK Copyright Designs and Patents Act 1988 S.9(3) which creates a 50 year term of protection for computer-created works.[5] Compendium of U.S. Copyright Office Practices 405.1[6] The visual elements of the book had been produced using a program called Midjourney which creates images from textual descriptions, but does so in “an unpredictable way” such that the human using the program could not be said to have exercised control over the form of the output, the Copyright Office viewing the prompts provided by the human running the program as more akin to suggestions than orders. The Copyright Office did, however, comment that “it is possible that other AI offerings that can generate expressive material operate differently than (sic) Midjourney does”.[7] 88 Fed. Reg. 16190

istrant 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."Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence,” 88 Fed. Reg. 16190 (Mar. 16, 2023)Thaler v Vidal, No. 21-2347, 43 F.4th 1207 (Fed. Cir. Aug. 5, 2022)Client Alert 2023-083

ncerning intellectual property ownership, infringement of intellectual property rights, and confidentiality of inputted information. However, AI, such as ChatGPT, can inspire innovation and ideas and enforce existing intellectual property rights. In a decade from now, this technology will significantly evolve and improve, and the treatment of AI may substantially change.1. OpenAI, Introducing ChatGPT, OpenAI (Nov. 30, 2022), https://openai.com/blog/chatgpt; BBC, Universities warn against using ChatGPT for assignments, bbc.com (Feb. 28, 2022), https://www.bbc.com/news/uk-england-bristol-64785020.2. OpenAI, Terms of Use, Section 3(a),OpenAI (Mar. 14, 2023), https://openai.com/policies/terms-of-use.3. Id., at Section 3(b).4. 35 U.S.C. §100(f); Beech Aircraft Corp. v. EDO Corp., 990 F.2d 1237, 1248 (Fed. Cir. 1993).5. Thaler v. Hirshfield, 558 F.Supp.3d 238 (E.D. Va. 2021).6. Naruto v. Slater, 888 F.3d 418 (9th. Cir. 2018).7. Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16190-01 (Mar. 16, 2023).8. Id., at 16193.9. Id., at 16192-16193.10. Id., at 16192.11. Joe McKendrick, Who Ultimately Owns Content Generated By ChatGPT And Other AI Platforms?, FORBES (Dec. 21, 2022, 12:59 PM), https://www.forbes.com/sites/joemckendrick/2022/12/21/who-ultimately-owns-content-generated-by-chatgpt-and-other-ai-platforms/?sh=527b63f65423.12. Supra, note 2.13. Id., at Section 7(a).14. Supra, note 2, at Section 5.15. OpenAI, ChatGPT General FAQ, Question 5, OPENAI, https://help.openai.com/en/articles/6783457-chatgpt-general-faq (last visited Apr. 4, 2023).16. Id., at Question 6.17. Id., at Question 8.18. Ryan Phelan and Matthew Carey, ChatGPT and Intellectual Property (IP) related Topics (Mar. 27, 2023), PATENTNEXT, https://www.patentnext.com/2023/03/chatgpt-and-intellectual-property-ip-related-topics; Sonam Singh, Infringement Search: AI chatGPT is confident but horribly wrong, HAVINGIP, https://havingip.com/patent-infringement-search-ai-chatgpt (last visited Apr. 4, 2023); Jack Appleby, Can Chat

ues implicated by this technology.” So it will be important to monitor the Office’s activities as well as the court’s decision in the Thaler case. It is possible that the Office could alter its approach going forward and/or that the court will disagree with the Office. In the future, might AI be seen as analogous to a camera and might certain AI-generated work be copyrightable? Photographs created using cameras (including cameras with certain automatic settings) have been deemed eligible for copyright protection. Perhaps the instructions and prompts that are given to AI systems will be interpreted as analogous to using a camera?As more and more AI-generated works enter the marketplace, it might make sense to reconsider how they are treated and whether they deserve any protection. Clearly more information and analysis will be needed on the issue of copyrightability of AI-generated work.Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence. Vol. 88 Fed. Reg. 16190 (Mar. 16, 2023).Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884).Id. at 58.Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018). Compendium of U.S. Copyright Office Practices § 306 (3d ed. 2021).Copyright NewsNet 1004, Mar. 16, 2023.