1/ The @Copyrightoffice Will Be Publishing A New Regulation Tomorrow Regarding The Copyrightability Of Ai-Created Works

Michael Eshaghian, Esq.

twitter thread from Michael Eshaghian, Esq.

1/ The @CopyrightOffice will be publishing a new regulation tomorrow regarding the copyrightability of AI-created works.

Let’s dive in.

Tweets 2-6 give background, 7-14 go into the meat of the guidance, and 15 gives the steps copyright applicants must take.

2/ The CO receives 500k apps per year and (according to itself) is uniquely situated to identify new trends in registration activity “that may require modifying or expanding the information required to be disclosed on an application.”
4/ For Zarya of the Dawn, the CO granted a copyright registration for the comic book, which is a compilation of images + text, but it rejected a registration in the images themselves since they were created by Midjourney.

See this thread for background:


5/ Given the growing number of applications implicating AI, the CO is releasing this guidance and “has launched an agency-wide initiative” into these issues. It also will seek public comment on these topics later this year.
6/ The CO then reiterates the legal arguments it has made previously: only works that are the product of human creativity can be copyrighted. Courts have ruled that works created by non-humans, e.g., monkeys and spiritual beings (yes, these are real cases), are not copyrightable.
7/ The most important part: The CO lays out the process it uses to determine whether a work created w/ AI is copyrightable.
8/ It asks “whether the ‘work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work . . . were actually conceived and executed not by man but by machine.
9/ In other words, are the AI’s contributions the result of “mechanical reproduction” or the result of the author’s “own original mental conception, to which [the author] gave visible form.”

The first is not copyrightable, the second is.

10/ Thus, if a human provides only a prompt and the AI produces “complex written, visual, or musical works in response”—no copyright because user does not exercise ultimate creative control over how the prompt is interpreted.
11/ This situation is “more like instructions to a commissioned artist—they identify what the prompter wishes to have depicted, but the machine determines how those instructions are implemented in its output.”
12/ The CO provides an example:

Prompt: “write a poem about copyright law in the style of William Shakespeare”—result is not copyrightable b/c the AI will determine rhyming pattern, words in each line, and structure.

13/ BUT, the CO identifies 3 ways AI-generated works could be copyrightable:

1⃣ it contains “sufficient” human authorship (undefined)

2⃣ a human selects or arranges AI-generated material in a sufficiently creative way such that the resulting work is copyrightable (this is what happened with Zarya of the Dawn)
3⃣ a human modifies AI-generated material “to such a degree” (undefined) that it meets the standards, in which case only the human-authored aspects are protectable.
14/ The CO acknowledges that tech has long been a part of an artist’s toolkit (e.g., Photoshop and guitar pedals). The key is, though, “the extent to which the human had creative control over the work’s expression and ‘actually formed’ the traditional elements of authorship.”
15/ 5 points of guidance for applicants:

1⃣Disclose AI-generated works and provide an explanation of the human’s contributions

2⃣Do NOT list the AI or the company providing the AI as a co-author

3⃣Any AI-generated content that is more than minimal must be explicitly excluded

4⃣ Pending applications should be reviewed for adherence to these requirements, and if necessary, the applicant should contact the CO’s Public Information Office and report the omission.
5⃣For applications that have already resulted in a registration, the applicant should submit a supplementary registration to correct the error, or else they risk cancellation of the registration.

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