The Hybrid Intelligence Work: Can a Layer of Creative Human Intelligence Make Your AI-Generated Work Protectable?

From my brand new blog (https://musicalipy.com/the-hybrid-intelligence-work/)

Creative works, whether written, designed, or musical – are not copyrightable if generated through artificial intelligence (AI).? This is because only human authors are eligible for copyright protection (remember the monkey selfie?).?

What can you do, then, if you feed prompts into a large language model (LLM) like ChatGPT to generate an original story, graphic design, song, or other kind of work?? There may be ways to obtain some remuneration from the work by making it available for download on third-party platforms.? However, as a work with no human author, and therefore no copyright protection, there is nothing to prevent others from copying, displaying, re-distributing, or otherwise exploiting the work for their own personal gain.

Unless there are major changes to the law of copyright, we have to forget about protecting the AI-generated work as is.? But what if you were to make a small, but substantial, change or addition to the work spit out by the LLM?

A creative work that uses a prior work as its raw material and contains changes to that work or adds a sufficient amount of new material is called a derivative work.? If the original work is copyrighted, the author seeking to create a derivative work would need permission from the owner of the copyright in the original work to add to or alter it.?

However, derivative works also can be created from works that are in the public domain.? The most common example of a public domain work is a work whose copyright has expired.? Now that we have works created by AI (and the occasional non-human primate), I think it’s accurate to categorize them as public domain works.

In other words, works generated by AI don’t enter the public domain after a lifetime of copyright protection; they are born into the public domain.

Oh, and here’s the nice thing about a derivative work:? you can get a copyright on it.

But the copyright protects only the additions or changes to the original work, not the elements of the original work.? So, how could you copyright an AI-generated work, and why would you do it?

First, you feed the prompts you want into the LLM - ChatGPT, or whichever one you use - and the AI spits out a work.? Let’s say you’re a composer and the work is a song.? But at this point, the song is merely a public domain work exploitable by anyone.

You’d need to change or add to that song to make it a protectable derivative work of the AI’s original song.? So you compose a new part for the song - vocals, a countermelody, a bridge, and/or a bass line – and using any recording software, you add that new part to the AI-generated song.? Assuming some originality to your new part(s), you now have a hybrid track ?– the original AI song plus your new part(s) – eligible for copyright protection as a derivative work.

Let’s call this new kind of derivative work – a hybrid work partially generated by artificial intelligence and partially created by human intelligence – a Hybrid Intelligence Work (HIW).

You file a copyright application with the U.S. Copyright Office and upload the hybrid track to the Copyright Office website with the application.? The application requires that you specify the pre-existing material and the new material, so you provide that information, and you should be able to get a copyright registration for your HIW.

Now, when you release the track yourself and/or via a music streaming service, if someone copies the file, tries to distribute it, etc., that would infringe your copyright in the derivative work.?

Let’s go one step further to illustrate the significance of the HIW.? Maybe you label your track to indicate that it was generated, at least in part, by AI.? There may be some people out there savvy enough to know? that AI-generated works are public domain (and as time goes on and more AI-generated works are distributed, this should slowly become common knowledge).

Even someone armed with this knowledge would have a tough time legally exploiting your HIW because the track consists of an inseparable (or very difficult to separate) amalgam of AI-generated public domain elements and human-created copyrighted elements.? That, in effect, protects your hybrid track from copying because the only way someone can feasibly copy it is to take the whole track, which would constitute infringement of your copyright in the HIW.

I understand that it is possible to isolate parts of a recording, but typically you need access to the original multi-track recording or sophisticated software to do it.? Even if someone had the software and wanted to separate out your copyrighted elements, it might not be obvious which elements of the mix those are.

So, while you can’t currently copyright your AI-generated work, adding a dash of creative human intelligence could result in a copyrightable Hybrid Intelligence Work.