By Julie C. Hancock

With the swift advancement and access to Artificial Intelligence technologies, many have questioned whether or not the output from these programs constitutes copyrightable material. AI can produce images, videos, sounds, data, information, and stories – all frequently eligible for copyright protection.

Historically, the U.S. Copyright Office has upheld a human requirement for authorship. This has been backed by multiple lower and upper court decisions as well as by Congress. However, we’ve never seen the level of output produced by AI systems trained on significant human data that we have in the last year.

Will these vast advancements in AI not only threaten creative jobs but alter the copyright landscape? So far, the answer is an emphatic no.

Copyright Office upholds human copyright precedent

In March, the U.S. Copyright Office issued a statement for public guidance on how the office will treat copyright applications for materials containing AI-produced content. Copyright Office officials state, in clear language, “In the Office’s view, it is well-established that copyright can protect only material that is the product of human creativity.”

This leaves little wiggle room for questions about whether or not the office will consider applications for purely machine-created material. However, there are examples of how AI-produced content can be mixed with human-driven content to secure a copyright.

Two specific examples given within the statement illustrate how using Artificial Intelligence in copyrighted materials works.

Example 1 - An applicant submitted a registration request for a “visual work” that was “autonomously created by a computer algorithm running on a machine.” The office concluded that the work was entirely produced by the machine and therefore was not eligible for registration.

Example 2 - An applicant submitted a registration request for a graphic novel that included images entirely generated by AI mixed with captions and text generated entirely by a human. This work, as a whole, was granted copyright protection, but the office specified that the individual images would not be able to receive copyright protection if submitted on their own.

These examples showcase how creatives can incorporate AI into their own works and present interesting opportunities for the future of art. The Federal Registry notes that “What matters is the extent to which the human had creative control over the work’s expression and ‘actually formed’ the traditional elements of authorship.” This leaves room for creatives to use AI to enhance their work but certainly not be their work.

The Registry adds “If a work’s traditional elements of authorship were produced by a machine, the work lacks human authorship and the Office will not register it.” Moving forward, works that incorporate AI need to lean far more heavily toward being human-generated works but can include elements from AI. Artists know what it takes to create as a human but machines do not.

Using AI for art is similar to getting a new tool to create. You use those new tools to create but they do not drive all of your work.

Supreme Court declines petition to overturn precedent

The Supreme Court swiftly and without much deliberation declined to alter the landscape of legal protection for AI-generated inventions, as well. After a lower court rejected a computer scientist’s attempt to garner IP protection for items “created” by AI, he petitioned the Supreme Court for a review.

The Supreme Court refused to hear the case and instead declined the petition. In the decision, the court reaffirmed the above notion that only humans are owed the right of authorship and creatorship. The court did, however, leave slight wiggle room in noting that if Congress passes a law to grant those rights to Artificial Intelligence then the court would reconsider the way it views future cases.

Your work deserves an advocate

At Your Virtual Advocate, we support our clients and their innovation. We work diligently to determine if your work is eligible for copyright protection and will continue to monitor developments in the Artificial Intelligence world.

There are obvious concerns about these developments for IP professionals, but there are also exciting opportunities to be captured as long as the government continues to protect human innovation. Our team is proud to work with you throughout the creative process and will adjust as precedent dictates how AI-involved works can or cannot be protected.