Can AI-generated content be copyrighted? According to the US Copyright Office ‘it depends’.
AI-generated content and artwork that exhibit ‘sufficient human creativity’ may qualify for copyright protection, according to a report from the United States Copyright Office.
“When human creativity is expressed through the use of AI systems, it remains eligible for protection,” said Shira Perlmutter, Register of Copyrights and the agency’s director.
The report concludes that AI-assisted works may be fully or partially eligible for copyright if a human can “determine the expressive elements.”
Sufficient human input
Titled Copyright and Artificial Intelligence Part 2: Copyrightability, the report is the second installment in a three-part inquiry by the U.S. Copyright Office into AI and copyright.
According to the agency, “expressive elements” are present when a human modifies AI-generated output or when “human-authored work is perceptible in an AI output.”
In short, any work created by a human, using AI, can be copyrighted if there is sufficient human input into the finished work.
Just prompting isn’t enough
The report clarifies that merely entering prompts to generate AI output does not qualify as ‘sufficient human contribution’.
It states that the determination of authorship should be assessed on a case-by-case basis.
In 2022, Colorado-based artist Jason M. Allen was denied copyright registration of his ‘Théâtre d’Opéra Spatial’, (pictured) which he created in 2022 using the generative AI tool, Midjourney.
Although his piece won against human artworks in a local competition, the U.S. Copyright Office ruled that the work was attributed to Midjourney, not Allen.
Allen is appealing the copyright office’s decision, arguing that the 600 Midjourney prompts he used to create his work required more than just the “bare minimal mental effort”.
The third and final installment of the report will examine the training of AI models on copyrighted materials; a practice that tens of thousands of artists have condemned as an “unjust threat to the livelihoods of the creators behind those works”.
In summary
Can AI-generated content be copyrighted?
No, purely AI-generated content cannot be copyrighted under U.S. law. Copyright protection requires human authorship, and without ‘significant human contribution’, AI-generated material does not qualify.
How much human input makes AI-generated works copyrightable?
Human input must be significant and extend beyond simply providing prompts. If a person creatively modifies, arranges, or integrates AI-generated content into a larger work, the human-authored elements may qualify for copyright protection.
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