Comment of Prof. Edward Lee to U.S. Copyright Office regarding the copyrightability of AI generated works. Download the Comment here.
This Comment was submitted to the Copyright Office in its study of artificial intelligence to answer the questions related to the copyrightability of AI generated works. The Copyright Office should return to the first principles of authorship under the Copyright Clause and its overriding objective to “promote progress.” As the Supreme Court elaborated in Feist, the proper test of authorship examines whether the person contributes, at least, a minimal level of creativity in the origination of the work, which may be satisfied simply by a person’s selection or arrangement of elements in the work. The requisite level is, as the Court recognized, “extremely low,” or the bare minimum to qualify as an author. There are no other tests for authorship, much less any restrictions on the process of authorship. However, the scope of copyright for works whose originality lies in their selection and arrangement of elements is thin, protecting against only identical copies. Not only is this bare minimum approach more faithful to the Copyright Clause and Supreme Court precedent, but it also preserves Congress’s power to decide how best to promote progress in the twenty-first century. And it stands in greater harmony with the recommended approach in the EU, a result that further promotes progress.
The application of the bare minimum test differs depending on the type of work. Some works, such as articles, essays, and works of fiction and nonfiction, typically require authorship-by-composition, meaning the creator composes the words and sentences in the work; for such prose-only works, authorship-by-selection-and-arrangement is reserved for collective works comprised of a number of individual works, such as in an anthology. Thus, one cannot claim to be the author of an essay simply based on writing the prompt to ChatGPT: “Write an essay about Justice Holmes’s influence on copyright law.” Instead, the person must compose expression or sentences in the essay to be its author. By contrast, visual works, musical works, charts, compilations of data, and potentially other types of works may involve authorship-by-selection-and-arrangement. Thus, one can be the author based on prompt engineering that effectuates the person’s minimally creative selection or arrangement of elements in the origination of such work. That human contribution satisfies the bare minimum for authorship articulated by Feist. But, if the only originality of the author lies in the bare minimum of selection or arrangement, the work receives only a thin copyright protecting against only identical copies.