On March 15, 2023, the Copyright Office issued registration guidance on works containing material generated by AI. According to the Copyright Office, the guidance was prompted by the fact that it is regularly receiving applications for works claiming copyright in AI-generated material, as well as works containing human-authored elements combined with AI-generated material.
Human authorship is a prerequisite to registrability. However, a work containing AI-generated material may also contain "sufficient human authorship to support a claim," the Office said. In that case, the human-authored aspects of the work, which are "independent of" the AI-generated material would merit protection. For instance, an original selection and arrangement of AI-generated material may be protectable. Likewise, an artist may sufficiently modify material originally generated by AI such that the modifications qualify for copyright protection.
Thus, works containing AI-generated material may be registrable, but that determination necessitates a "case-by-case" inquiry. "The [Copyright] Office will consider whether the AI contributions are the result of 'mechanical reproduction' or instead of an author's 'own original mental conception, to which [the author] gave visible form,'" the Office said.
The guidance also impacts copyright applications as well as existing registrations for works containing AI-generated material. Applicants are required to expressly exclude AI-generated content that is more than de minimis from their applications, and should provide a brief description of the included AI-generated content. Importantly, applicants who have already submitted applications for works containing AI-generated material should confirm that they adequately disclosed that material and if not, take steps to correct the information so that the registration remains effective. Likewise, supplementary registrations must be submitted for existing registrations where the application failed to disclose the existence of non-de minimis AI-generated material. The Office clarified that "[a]pplicants who fail to update the public record after obtaining a registration risk losing the benefits of the registration." The Office may take steps to cancel the registration, or a Court may disregard such a registration in an infringement action if the Court concludes the applicant knowingly provided the Office with inaccurate information, and the accurate information would have resulted in the refusal of the registration.
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