The Copyrightable AI-Human Collaboration: How the U.S. Copyright Office Evaluates Works Containing AI-Generated Material

Article written by?Croke Fairchild Duarte & Beres?Partner Cameron Robinson and Summer Associate Jane Jeung

Generative AI brings forth new creations from a few words of input — when a human commands “Let there be light,” generative AI makes light in various forms, whether it be textual, visual, or audio output.

But can such AI-created works be registered for copyright? The U.S. Copyright Office answered "yes" to this question in its official guideline published in March, affirming that works containing AI-generated material are still eligible for copyright protection. However, there is a crucial caveat: The human contributions to any works containing AI-generated material must, on their own, satisfy the human authorship requirement.

I. The Threshold: Human Authorship Requirement

The human authorship requirement is not a new concept in copyright law. It is rather a basic idea that copyright protection is granted to works that are the product of human creativity. For example, courts have established that a monkey cannot be registered as the author for photos it captures with a camera.[1] Similarly, if a book claims to be authored by non-human spiritual beings but lacks the human element of selecting and arranging the content, it would not be eligible for copyright protection.[2]

When applying this requirement of human authorship to the realm of AI, it means that:

1. AI cannot be the author.
2. AI can merely assist with the creation of the work, and the traditional elements of authorship in the work must be done by human.

Simply put, while AI can play a role in the creative process, a human author must provide substantial input and exercise creative control over the final work to qualify for copyright protection.

II.?How much human authorship is sufficient?

Unfortunately, there is no specific rule quantifying how many words, pixels, or notes are required to meet the human authorship requirement, as was emphasized in a recent webinar held by the Copyright Office. Rather, it is only clear that copyright protection cannot be claimed when a human simply inputs a prompt and the corresponding work is generated solely by AI. This is because the AI independently interprets the prompt and determines the expressive elements of its output, thereby excluding the human from exercising ultimate creative control over the work.

In cases of AI-human collaboration where the human contribution goes beyond only inputting a prompt, human authorship determination differs case by case. The Copyright Office guides that for an AI-human collaboration to be eligible for copyright, the human should select or arrange the AI-generated material in a sufficiently creative way that results in the completed work constituting an original work of authorship. However, it is important to note that even when a work is copyrighted, only the aspects of the work that are human-authored and do not affect the copyright status of the AI-generated material are protected.

Figure 1. The Copyright Office made a recent decision on "Zarya of the Dawn," an AI-Human collaborative webcomic work. Only the textual content and its arrangement, which involved sufficient human authorship, was granted copyright protection, not the individual images created solely by generative AI, “Midjourney.”

The Copyright Office stated that it relies on its extensive experience in evaluating submissions that combine human authorship with technology-generated material to make these assessments.

III. How to Register AI-Human Collaborative Works

The Copyright Office instructs applicants to disclose the inclusion of AI-generated content in the copyright application.

New applicants should:

• Use Standard Application.
• Include a brief description of the authorship that was contributed by a human, in the “Author Created” field.
• Where the human work of authorship is the manner in which the AI-generated work was compiled with human-authored content, state “‘Selection, coordination, and arrangement of [describe human-authored content] created by the author and [describe AI content] generated by artificial intelligence.’”
• Explicitly exclude AI-generated content that is more than de minimis from the application in the “Limitation of the Claim” section in the “Other” field, under the “Material Excluded” heading by providing a brief description of the AI-generated content, such as by entering “‘[description of content] generated by artificial intelligence.’” This can also be done in the “Note to CO” field.
• Provide a general statement that a work contains AI-generated material, if unsure.

Submitted / pending applicants should:

• Contact the Copyright Office’s Public Information Office, and report that their application omitted the fact that the work contained AI-generated material.

Registered applicants should:

• Submit supplementary registration to correct the public record.

While to date the Copyright Office does not appear to be going back to prior registrations in order to review and determine if a work includes AI materials, the use of AI should always be disclosed as part of an application, as failure to disclose AI involvement or take corrective actions may result in the cancellation of registration. Additionally, if applicants knowingly provide inaccurate information, and the accurate information would have resulted in the refusal of the registration, a court may disregard a registration in an infringement action.

Facing the complexities of copyright and AI issues? Croke Fairchild Duarte & Beres understand the evolving landscape of AI technology and its impact on intellectual property rights. Let’s talk.

[1] ?Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018)

[2] Urantia Found. v. Kristen Maaherra, 114 F.3d 955, 957–59 (9th Cir. 1997)