The U.S. Copyright Office (“USCO”) released “Copyright and Artificial Intelligence, Part 2: Copyrightability” after receiving thousands of comments to its Notice of Inquiry, which largely considered whether material generated with the assistance of artificial intelligence (“AI”) should be afforded copyright protection. In its report, the USCO set forth guidelines and recommendations addressing the issue of AI-assisted authorship pursuant to existing law.
While the Copyright Office has a history of remaining flexible as new technologies emerge, the human role in creating a work of authorship remains central to the analysis of copyrightability. In its report, the USCO highlights the distinction between using AI as a tool to create works rather than relying on AI as a replacement for human creativity, concluding that material created solely or primarily by AI will not be afforded copyright protection.
While the issue of copyrightability continues to be determined on a case-by-case basis, the element of human control is emphasized. On the one hand, prompts drafted by a human and fed to an AI system will not make that human the author of the output. This is because, while a human may have provided detailed instructions to the AI system, the resulting work is a product of how the machine itself subjectively processed and expressed those instructions. However, a human may be considered the author of an output where the resulting work is predominantly based on a human-created piece, such as a drawing, or where an output has been significantly modified by a human to the extent that is justifies protection.
For the time being, copyright law continues to protect the original expression of human authorship even when AI has been used in its creation, but a human must retain significant control of the creative process to ensure that the resulting work is truly their own.