The use of artificial intelligence (AI) to generate creative works raises interesting legal challenges to the protection of intellectual property. The plain language of the Copyright Act presents obstacles to artists who may use generative AI as part of their creative process, because an author of a work’s expressive elements must be human and not machine. After reissuing the copyright registration to exclude images in a graphic novel that were created by the generative AI program, Midjourney, the U.S. Copyright Office (USCO) recently provided guidance on this issue, including the applicant’s duty to disclose the use of AI technology in the creative process.

What You Need to Know:

• AI is computer technology that can simulate human intelligence.
• In September 2022, the USCO issued a registration for Zarya of the Dawn, a graphic novel that was created with the assistance of AI, and then shortly thereafter, changed its position and notified the author that it might cancel the registration.
• In February 2023, the USCO reissued the registration certificate for Zarya of the Dawn to cover only the work’s text and selection, coordination, and arrangement of written and visual elements, but not the images because they were generated by Midjourney.
• In March 2023, in response to the increase in applications involving the use of AI to produce expressive works, the USCO provided guidance on when such works may be copyrightable and the applicant’s disclosure requirements when using such technologies.

AI is generally described as the use of computer technology to simulate human intelligence. AI can make decisions based on data analysis and pattern recognition, learn from past experiences to optimize processes, and generate images from speech or text. This alert discusses the USCO’s stance on using AI to create works of art and the implications for the protection of creative works generated, at least in part, by AI.

As I have explained in prior alerts,^[1] in September 2022, the USCO issued a copyright registration for Zarya of the Dawn, a graphic novel where the author used the generative AI application, Midjourney, to create the images, but then notified the author about a month later that it might cancel the registration if she could not demonstrate substantial human involvement in the creation of the graphic novel. On February 21, 2003, the USCO reissued a registration certificate for Zarya of the Dawn that excluded the graphic material created by Midjourney from copyright protection.

Last week, the USCO provided additional guidance on this topic, because of the increasing use of AI technologies to generate creative works. Specifically, the USCO noted that the use of generative AI raises questions about: 1) the copyrightability of works created by AI; 2) whether works involving human and AI-generated content are protectable; and 3) what information applicants must disclose to the USCO about the use of such technologies in the creative process.  

In its guidance, the USCO discussed its reissuance of the registration for Zarya of the Dawn and noted that applicants have been inconsistently disclosing how AI technologies may have been used to generate their works. As a result, the USCO has launched an agency-wide initiative to examine these issues, and will publish a Notice of Inquiry later this year, that will include a request for the public’s input on the implications of AI in the creative process.

In addition to reaffirming its position that copyright protection only applies to expressive works created by humans, the USCO explained that it will make case-by-case determinations of the protectability of works involving generative AI contributions. Of particular import, is how an AI application operates and was used to create the final work. The USCO distinguished between AI that was used to assist a human author from situations where the AI application would be considered the author – where an individual lacks ultimate creative control over how the AI application responds to prompts and generates content. The USCO explained that not all materials where AI is utilized would be excluded from protection. For example, copyright protection would still apply where AI was used to edit an image. In sum, the key inquiry is the extent to which an individual had creative control over a work’s expression.

Also, the USCO explained that applicants have a duty to disclose the use of AI involvement when seeking copyright protection, and to provide a brief explanation of the individual’s contributions. Importantly, the USCO put authors and artists on notice that AI-generated content that is more than de minimis should be explicitly excluded from an application, and that previously filed applications should be reviewed to make sure that AI-generated material has been disclosed and corrected, if necessary.

Authors and artists should pay careful attention to the USCO’s recent guidance and how the Office views the use of generative AI to create works, such as art, music, movies, and software. Individuals who use AI for creative purposes should be prepared to document to the USCO their own involvement in the process, as well as how they used AI to assist in that regard, and, as with Zarya of the Dawn, expect the USCO to rely on publicly available information, such as social media posts, to assess the protectability of works made with the involvement of AI applications.

^{[1] https://www.saul.com/professionals/matthew-d-kohel/insights}