The US Copyright Office has recently issued new guidance on copyright protections for art, music, and other works created with the help of artificial intelligence. The guidance suggests that AI-assisted works can be registered for copyright if there is significant human authorship, such as when an artist creatively selects, arranges, or modifies AI-generated materials. However, attorneys argue that the guidance leaves room for different interpretations and may require court intervention for clarification.

The policy statement comes after the Copyright Office granted limited copyright registration for an AI-assisted graphic novel, “Zarya of the Dawn” by Kris Kashtanova. While the text and overall work were registered, individual images generated by the text-to-image program Midjourney were not.

The Copyright Office emphasizes that technology can be part of the creative process, citing the use of software like Adobe Photoshop to create copyright-protected works. The key factor is the level of human creative control and the formation of traditional authorship elements in the work.

Ryan Abbott, an IP partner at Brown Neri Smith & Khan LLP, suggests that the guidance may be difficult to apply procedurally, as generative AI systems can involve varying levels of human input. The guidance also raises questions about whether AI prompts can qualify for copyright protection, as they may require a certain level of originality and creativity.

While some attorneys argue that the Copyright Office is imitating its approach to computer source code, enforcement of copyright on AI-generated works may prove difficult. The guidance likens AI prompts to instructions given to a commissioned artist, but some lawyers question the distinction between AI-assisted image creation and human photography.

As the legal landscape surrounding AI remains unclear, attorneys are watching for litigation to help clarify the Copyright Office’s guidance. The office has announced that it will hold listening sessions and has launched a new AI webpage to gather public input and feedback.

Reference: https://public-inspection.federalregister.gov/2023-05321.pdf