Artificial Intelligence (AI) has rapidly become an essential component of various creative processes across multiple industries. As AI continues to advance and permeate creative fields, questions regarding the protection of intellectual property (IP) rights for AI-generated and AI-assisted works have emerged.
Questions—and disputes—about copyright issues related to AI-created and/or AI-assisted outputs have been at the forefront of many discussions. The U.S. Copyright Office recently weighed in on these issues with a policy statement addressing the ability to register AI-assisted works. As discussed below, the Copyright Office’s policy position is that while creative output from AI alone cannot be registered, works created with AI assistance by a human can be.
The line between AI and pure human innovation has blurred as technology continues to evolve at a rapid pace. Technological advances and the parallel progress of AI have resulted in several key innovations: robots can double as radiologists and interpret CT scans and other imaging, vehicles can drive themselves with automated technology, and generative AI, such as ChatGPT and Stable Diffusion, has the ability to create written and artistic bodies of work.
There has been a great deal of debate and confusion about whether creators who use generative AI to produce creative outputs, such as images and written text, can protect the resulting IP. One of the biggest impediments to protecting material generated by AI is the underlying legal principle that IP capable of protection requires a human creator.
This issue was at the forefront of the legal disputes involving Dr. Stephen Thaler, who unsuccessfully attempted to secure a patent for an AI invention. In 2018 and 2019, Dr. Thaler filed a patent application naming Device for Autonomous Bootstrapping of Unified Sentience (DABUS) as the inventor of the resulting inventions. The application was filed in the European Union, United States, and United Kingdom patent offices, and all three entities denied the patent application on the basis of one key point: Only human inventors can be issued a patent.
The same principle applies when it comes to copyright protection. The courts have consistently emphasized that IP law can only protect material that is the product of human creativity and authorship. However, the Copyright Office recently opened the door for human creators to seek and obtain copyright protection when AI merely assists them in the creation of copyrightable work.
The Copyright Office’s Policy Statement
The Copyright Office’s policy statement, Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, makes clear that works created by AI without human intervention or involvement still cannot be copyrighted. It explains, however, that a work containing AI-generated material may contain sufficient human authorship to support a copyright claim.
There is a fine—and blurry—line between AI’s role as sole creator or assistant. The policy statement provides examples to help draw the distinction.
On the one hand, when “AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the ‘traditional elements of authorship’ are determined and executed by the technology—not the human user.”
On the other hand, “a human may select or arrange AI-generated material in a sufficiently creative way that the resulting work as a whole constitutes an original work of authorship.”
In the latter case, the Copyright Office makes clear that copyright will only protect the human-authored aspects of the work—it does not affect the copyright status of the AI-generated material itself. The policy statement cites a recent example that clarifies this distinction. In February 2023, the Copyright Office “concluded that a graphic novel 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.”
Ultimately, according to the policy statement, the question of whether a particular AI-assisted work is copyrightable will “depend on the circumstances, particularly how the AI tool operates and how it was used to create the final work.”
The Copyright Office also made clear that copyright applicants must disclose instances when their work includes AI-generated material, and previously filed applications that do not disclose the use of AI must be updated.
The legal landscape at the intersection of AI and IP is constantly changing. As AI continues to become more pervasive as a tool that creators use to generate work, the door may continue to swing open, allowing creators to gain IP protection for their AI-assisted work.
From patent to copyright protection, it will be critical for humans to prove that they are the authors of the underlying work. This requires focus and attention on documenting the creative process: Keeping a comprehensive record of creative intent, input, decision-making process, version history, and timestamps to demonstrate significant contribution to the work.
Only time will tell, but the Copyright Office’s policy statement is a hopeful sign that our legal frameworks will develop in a way that allows AI and human creators to coexist—protecting the value and integrity of existing intellectual property while continuing to encourage technological innovation.