U.S. says you can’t copyright works created by AI via prompt

If you were hoping to protect your AI-generated work under copyright laws, then think again. The U.S. Government has published guidance on copyright registration which says that you may not be able to.

What has happened?

The U.S. Copyright Office (USCO) has published guidance in the Federal Register. It’s titled “Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence.” It’s a policy statement on how the USCO will treat requests to copyright works created by AI. As part of the document, the USCO says that it receives around half a million applications for registration each year.

What is AI-generated work?

The USCO document references works created by artificial intelligence in response to textual instruction or a prompt from a human. The AI then creates a text, image or audio work based on its training in pre-existing human-authored works. The USCO confirmed that it is now receiving requests to register works consisting of both human-authored and AI-generated material.

AI-generated work

The USCO reported that in 2018 it received an application to register a visual work described as “autonomously created by a computer algorithm running on a machine.” The USCO stated that the application was denied because the work contained no human authorship. After an appeal, the USCO’s Review Board also confirmed that the work could not be registered. This was because it was made “without any creative contribution from a human actor.”

More recent developments

The USCO went on to state that, more recently, it reviewed a registration for a work containing human-authored elements combined with AI-generated images. It was this that led the USCO to issue the recent public guidance. The office also restated that a work must be created by a human in order for it to be copyrighted. As part of the ruling, the USCO referenced a case where it ruled that photographs taken by a monkey could not be copyrighted.

What is the ruling on AI-generated images?

The USCO guidance states that you cannot copyright a work created by an AI technology if all you did was give it a prompt. This is because the technology is carrying out the “traditional elements of authorship” and not you as the human user. However, if you select or arrange AI-generated material in a “sufficiently creative way,” your actions could be considered authorship. In that situation, you may be able to apply for copyright protection. Ultimately each application must be considered in detail on a case-by-case basis.

What we think

Copyright is essential for artists and creators to be able to protect their rights in relation to their works. However, the USCO said that only works where humans have been involved in their creation can be protected. The development in AI is progressing quickly, and it seems the law is struggling to keep up with the advances in technology. The guidance from USCO provides some clarity, however, there is still work to be done to decide where AI fits in the artistic world.

Pete Tomkies
Pete Tomkies
Pete Tomkies is a freelance cinematographer and camera operator from Manchester, UK. He also produces and directs short films as Duck66 Films. Pete's latest short Once Bitten... won 15 awards and was selected for 105 film festivals around the world.

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