is empowered by the Copyright Act to establish the application used by applicants seeking registration of their copyrighted works.[1] While the Act identifies certain minimum requirements, the Register may determine that additional information is necessary for the Office to evaluate the “existence, ownership, or duration of the copyright.”[2] Because the Office receives roughly half a million applications for registration each year, it sees new trends in registration activity that may require modifying or expanding the information required to be disclosed on an application.
One such recent development is the use of sophisticated artificial intelligence (“AI”) technologies capable of producing expressive material.[3] These technologies “train” on vast quantities of preexisting human-authored works and use inferences from that training to generate new content. Some systems operate in response to a user’s textual instruction, called a “prompt.”[4] The resulting output may be textual, visual, or audio, and is determined by the AI based on its design and the material it has been trained on. These technologies, often described as “generative AI,” raise questions about whether the material they produce is protected by copyright, whether works consisting of both human-authored and AI-generated material may be registered, and what information should be provided to the Office by applicants seeking to register them.
These are no longer hypothetical questions, as the Office is already receiving and examining applications for registration that claim copyright in AI-generated material. For example, in 2018 the Office received an application for a visual work that the applicant described as “autonomously created by a computer algorithm running on a machine.”[5] The application was denied because, based on the applicant’s representations in the application, the examiner found that the work contained no human authorship. After a series of administrative appeals, the Office’s Review Board issued a final determination affirming that the work could not be registered because it was made “without any creative contribution from a human actor.”[6]
More recently, the Office reviewed a registration for a work containing human-authored elements combined with AI-generated images. In February 2023, the Office concluded that a graphic novel[7] 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.[8]
The Office has received other applications that have named AI technology as the author or co-author of the work or have included statements in the “Author Created” or “Note to Copyright Office” sections of the application indicating that the work was produced by or with the assistance of AI. Other applicants have not disclosed the inclusion of AI-generated material but have mentioned the names of AI technologies in the title of the work or the “acknowledgments” section of the deposit.
Based on these developments, the Office concludes that public guidance is needed on the registration of works containing AI-generated content. This statement of policy describes how the Office applies copyright law’s human authorship requirement to applications to register such works and provides guidance to applicants.
The Office recognizes that AI-generated works implicate other copyright issues not addressed in this statement. It has launched an agency-wide initiative to delve into a wide range of these issues. Among other things, the Office intends to publish a notice of inquiry later this year seeking public input on additional legal and policy topics, including how the law should apply to the use of copyrighted works in AI training and the resulting treatment of outputs.
II. The Human Authorship Requirement
In the Office’s view, it is well-established that copyright can protect only material that is the product of human creativity. Most fundamentally, the term “author,” which is used in both the Constitution and the Copyright Act, excludes non-humans. The Office’s registration policies and regulations reflect statutory and judicial guidance on this issue.
In its leading case on authorship, the Supreme Court used language excluding non-humans in interpreting Congress’s constitutional power to provide “authors” the exclusive right to their “writings.”[9] In Burrow-Giles Lithographic Co. v. Sarony, a defendant accused of making unauthorized copies of a photograph argued that the expansion of copyright protection to photographs by Congress was unconstitutional because “a photograph is not a writing nor the production of an author” but is instead created by a camera.[10] The Court disagreed, holding that there was “no doubt” the Constitution’s Copyright Clause permitted photographs to be subject to copyright, “so far as they are representatives of original intellectual conceptions of the author.”[11] The Court defined an “author” as “he to whom anything owes its origin; originator; maker; one who completes a work of science or literature.”[12] It repeatedly referred to such “authors” as human, describing authors as a class of “persons”[13] and a copyright as “the exclusive right of a man to the production of his own genius or intellect.”[14]
Federal appellate courts have reached a similar conclusion when interpreting the text of the Copyright Act, which provides copyright protection only for “works of authorship.”[15] The Ninth Circuit has held that a book containing words “authored by non-human spiritual beings” can only qualify for
- ↑ 17 U.S.C. 409.
- ↑ Id. at 409(10).
- ↑ The term “expressive material” is used here to refer to AI output that, if it had been created by a human, would fall within the subject matter of copyright as defined in section 102 of the Act. See id. at 102(a).
- ↑ See Prompts, Midjourney, https://docs.midjourney.com/docs/prompts (noting for users of the artificial intelligence service Midjourney a prompt is “a short text phrase that the Midjourney [service] uses to produce an image”). To be clear, this policy statement is not limited to AI technologies that accept text “prompts” or to technologies permitting prompts of a particular length or complexity.
- ↑ U.S. Copyright Office Review Board, Decision Affirming Refusal of Registration of a Recent Entrance to Paradise at 2 (Feb. 14, 2022), https://www.copyright.gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf.
- ↑ Id. at 2–3. The Office’s decision is currently being challenged in Thaler v. Perlmutter, Case No. 1:22–cv–01564 (D.D.C.).
- ↑ On the application, the applicant described the work as a “comic book.” See U.S. Copyright Office, Cancellation Decision re: Zarya of the Dawn (VAu001480196) at 2 (Feb. 21, 2023), https://www.copyright.gov/docs/zarya-of-the-dawn.pdf.
- ↑ Id.
- ↑ U.S. Const. art. I, sec. 8, cl. 8 (Congress has the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”).
- ↑ 111 U.S. 53, 56 (1884) (explaining that the defendant had argued that photographs were merely “reproduction on paper of the exact features of some natural object or of some person”).
- ↑ Id. at 58.
- ↑ Id. at 57–58.
- ↑ Id. at 56 (describing beneficiaries of the Constitution’s Copyright Clause as “authors,” who are one of “two classes” of “persons”).
- ↑ Id. at 58; see also id. at 60–61 (agreeing with an English decision describing an “author” as the “person” who was “the cause of the picture which is produced” and “the man” who creates or gives effect to the idea in the work).
- ↑ 17 U.S.C. 102(a).
