IP Law Daily, COPYRIGHT NEWS: Copyright Office stands by its position on copyrightability of AI-generated works, (Jan 29, 2025)

By Matthew Hersh, J.D.

AI can assist human authorship, but cannot replace it.

Copyright does not extend to purely AI-generated material or material where there is “insufficient human control over the expressive elements,” the Copyright Office has concluded. But the Office, in announcing the second of three long-anticipated reports on copyright and artificial intelligence, stood by its longstanding view that “the use of AI to assist in the process of creation or the inclusion of AI-generated material in a larger human-generated work does not bar copyrightability.”

The 50-page report is the latest step in the Copyright Office’s broad AI initiative, begun in 2023, to explore the intersection of copyright and artificial intelligence. Since the initiative began, the Office recounts, it has attracted more than 10,000 comments representing the views of “authors and composers, performers and artists, publishers and producers, lawyers and academics, technology companies, libraries, sports leagues, trade groups and public interest organizations, and even a class of middle school students.” The Office’s released the first of its three reports, addressing the copyright issues raised by digital replicas, in July 2024. The third report will address the legal implications of training AI models on copyrighted works, including licensing considerations and the allocation of any potential liability.

The report, while heavily anticipated in the copyright community, does not break any new ground. The Office stands by its long-stated conclusion that copyright protects only “the original expression in a work created by a human author”—a view long recognized by the courts. Thus, the report concludes, content that is “entirely generated” by AI cannot be protected by copyright. This is true, the Office emphasizes, even though the content may be influenced by creative human inputs. The problem, the Office notes, is that popular AI systems are “unpredictable in the sense that their outputs may vary from request to request, even with an identical prompt.” Indeed, the Office emphasizes, some observers describe AI as a “black box,” and “even expert researchers are limited in their ability to understand or predict the behavior of specific models.”

That said, the Office emphasizes, where AI “merely assists” an author in the creative process, its use does not change the copyrightability of the output. For example, the Office notes, commentators pointed to the uses of AI for activities such as “aging” or “de-aging” actors, identifying chord progressions, detecting errors in software code, and removing unwanted objects or crowds from a scene. The output of these uses would normally be protectable, the report concludes, unless the AI system is making the actual “expressive choices” itself.

Commenters also identified situations where creators have begun to experiment with using AI as a “brainstorming tool” such as to assist them in creating new music through song ideation or to structure or create a preliminary outline for literary works. “In these cases, the user appears to be prompting a generative AI system and referencing, but not incorporating, the output in the development of her own work of authorship,” the Office emphasized. “Using AI in this way should not affect the copyrightability of the resulting human-authored work.”

The report also briefly summarizes the approaches taken by other countries toward artificial intelligence and copyright. Courts and commissions in Korea, Japan, and China have all reaffirmed the principle, the Office notes, that “copyright requires human authorship.” In other countries, such as Canada, the United Kingdom, Australia, and the nations of the European Union, no firm decision has yet been reached. “Although some level of consensus on the need for human authorship appears to be emerging, and most countries have so far continued to apply existing law, it is clear that views are still being formed,” the Office noted. “The Office is closely monitoring developments abroad and evaluating how other countries’ evolving approaches may ultimately overlap or differ from our own.”

The report also emphasizes that the case has not been made for additional protection for AI-generated material “beyond that provided by existing law.” Because copyright requires human authorship, the Office concludes, “copyright law cannot be the basis of protection for works that do not satisfy that requirement” under the Copyright Clause of the Constitution—which is intended to be provided to human authors, the Office emphasizes, “as the means to promote progress.” Thus, while Congress could instead consider establishing sui generis rights, the Office concludes, “we do not find the policy arguments for additional protection to be persuasive.”

The report is not the first time that the Copyright Office has addressed the question of the copyrightability of AI-generated works. In recent years, the Office has refused to register AI-generated works by a noted inventor, a comic book illustrator, an intellectual property attorney, and even the winner of the 2022 Colorado State Fair’s “digital art/digitally manipulated photography” entry. A Washington, D.C. federal court affirmed the Office’s rejection of the inventor’s entry, while a lawsuit brought by the putative author of the Colorado state fair entry is now pending before a federal court in that state. The Register of Copyrights, Shira Perlmutter, filed her answer in that lawsuit yesterday.

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