Beware Misleading Headlines: Copyright Office Did Not Change the Rules on AI

You may see in your news feeds that the Copyright Office released a report on January 29 on the copyrightability of AI-produced works.  Beware – some headlines/write ups have been wrong about this being a change in policy or how the law is applied.  There is no change to current law or approach, but if you are still wondering what is or is not protectible by copyright when AI is involved in the creation process, read on.  

  • Inputs and prompts may themselves be sufficient for copyright protection, but do not confer any level of copyrightability on the output.

  • Copyrightability of the output is judged by the nature of the human involvement in the output.  Only the human’s contributions are protected, but if the human’s contributions give rise to the creation of a new work meeting the minimum requirements for originality, the resulting work can be protected as a whole.  By way of example:

    • If you ask for an image of a zebra in a tutu and tiara, and change nothing about the output, you own nothing, even if no one in the world had ever thought before you did about putting a tiara and a tutu on a zebra.

    • If you input your own photograph of a real zebra that you took at the zoo and ask the AI to add a tutu and a tiara and make it cartoonish, and make no changes to the output, you own your original photograph and any part of the output that directly incorporates the original photo, but nothing else.

    • Extending the last bullet, if you alter the striping and the shape of the facial features, tilt the tiara to sit at an angle, and change the tutu to a lacy skirt, you may own your selection, coordination, and arrangement of the output and your modifications, and may own the final image as a whole, but you do not own any rights in the tiara separate from the final image.

All assessments are made on a case-by-case basis, continuing to use existing law, which is sufficient to do the analysis and reach a determination.

Assistive uses of AI as opposed to creative uses are addressed succinctly.  The Copyright Office agrees that there is an important distinction between using AI in an assistive capacity and a creative capacity, but confirms that the distinction continues to depend on how the system is actually used as opposed to any inherent characteristics.  In other words, you must evaluate the human contribution.

As noted by the Copyright Office’s report, this is consistent with the international view thus far.  It comes down to human authorship internationally too, though there is variation in how it is articulated.

As businesses expand the use of AI in their creative processes, it will be important for creators to work closely with their legal counsel to determine copyrightability.  Businesses must be transparent with legal teams, the Copyright Office, and any third party for whom the materials are created regarding the role of AI in the creative process.

Originally published by InfoLawGroup LLP. If you would like to receive regular emails from us, in which we share updates and our take on current legal news, please subscribe to InfoLawGroup’s Insights HERE.

Rosanne YangAI, Artificial Intelligence, intellectual property, copyright