The US Copyright Office has reaffirmed its position that entirely AI-generated creative works do not enjoy copyright protection under American law, but AI-assisted works may be protected, depending on how any one individual employs a generative AI model. As for how much human involvement there should be for copyright to kick in, “prompts do not alone provide sufficient control” for an output to be copyrightable.
This position is set out in the second of three reports that the Copyright Office is publishing on artificial intelligence, based on an extensive consultation it launched in 2023. It concludes that, when it comes to the copyright status of AI-generated works, current copyright law provides sufficient clarity and no legislative reforms are required.
“Copyright does not extend to purely AI-generated material or material where there is insufficient human control over the expressive elements”, the report states. However, “copyright protects the original expression in a work created by a human author, even if the work also includes AI-generated material”.
To get full protection under US copyright law, works need to be registered with the Copyright Office. Which means it has already given quite a lot of consideration as to whether or not AI-generated works should enjoy copyright protection, as and when people have tried to register such works. It has been pretty consistent on its position, though some decisions have been subsequently challenged in the courts.
If copyright protection is provided to AI-assisted but not AI-generated works, that of course poses the question how much human involvement there needs to be in order to say that an AI model only assisted in the creation of a piece of content. In its report, the Copyright Office says “whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analysed on a case-by-case basis”. However, it does also provide some guidance.
During its consultation, there was a diversity of opinions regarding how much human involvement there needs to be. Although, the report says, “most commenters agreed that inputting simple prompts” would not be enough for the AI user to claim to be the author of the outputted work, and therefore for that work to enjoy copyright protection. It then cites two music industry submissions in this domain.
Collecting society ASCAP told the Copyright Office, “where a human’s involvement is limited to the simple generation of minimal queries and prompts for an AI tool, the resulting material is not entitled to copyright protection”. While Universal Music said, “the prompting user is no more an author than someone who tells a musician friend to ‘write me a pretty love song in a major key’ and then falsely claims co-ownership”.
However, the report adds, “commenters’ views on more detailed prompts, including those that are revised and repeated, varied”. Some, it explains, “viewed highly detailed prompts as sufficient to make some AI-generated outputs copyrightable”. While others argued that, even with more detailed prompts, “the unpredictability of the prompt-to-output generation process” means there is insufficient control on the part of the user to claim human authorship.
In its conclusion, the Copyright Office writes, “given current generally available technology, prompts alone do not provide sufficient human control to make users of an AI system the authors of the output”. And “while highly detailed prompts could contain the user’s desired expressive elements, at present they do not control how the AI system processes them in generating the output”.
Things are slightly more straightforward when a user inputs a human created work and then uses AI to enhance or manipulate it. In the scenario, providing the input is ‘perceptible’ in the output, there will be copyright in the final work, although the protection may be restricted to the inputted elements. In the words of the report, “where a human inputs their own copyrightable work and that work is perceptible in the output, they will be the author of at least that portion of the output”.
The report also reviews what copyright law in other countries says about the copyright status of AI-generated works, noting that UK law does seem to provide protection for “computer-generated works”. However, it also observes, that it is currently under review as part of the UK government’s own ongoing consultation on AI and copyright.