The U.S. Copyright Office issued its Part 2 Report on Copyrightability of AI-generated works.
Here’s the Summary from the Copyright Office:
Based on an analysis of copyright law and policy, informed by the many thoughtful comments in response to our NOI, the Office makes the following conclusions and recommendations:
- Questions of copyrightability and AI can be resolved pursuant to existing law, without the need for legislative change.
- The use of AI tools to assist rather than stand in for human creativity does not affect the availability of copyright protection for the output.
- Copyright protects the original expression in a work created by a human author, even if the work also includes AI-generated material.
- Copyright does not extend to purely AI-generated material, or material where there is insufficient human control over the expressive elements.
- Whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analyzed on a case-by-case basis.
- Based on the functioning of current generally available technology, prompts do not alone provide sufficient control.
- Human authors are entitled to copyright in their works of authorship that are perceptible in AI-generated outputs, as well as the creative selection, coordination, or arrangement of material in the outputs, or creative modifications of the outputs.
- The case has not been made for additional copyright or sui generis protection for AI- generated content. The Office will continue to monitor technological and legal developments to determine whether any of these conclusions should be revisited. It will also provide ongoing assistance to the public, including through additional registration guidance and an update to the Compendium of U.S. Copyright Office Practices.
selecting, editing, and adapting after prompting Can amount to human authorship
It does look like the Office is open to authorship through additional selecting, editing, and adapting after the prompting:
Many popular AI platforms offer tools that encourage users to select, edit, and adapt AI-generated content in an iterative fashion. Midjourney, for instance, offers what it calls “Vary Region and Remix Prompting,” which allow users to select and regenerate regions of an image with a modified prompt. In the “Getting Started” section of its website, Midjourney provides the following images to demonstrate how these tools work.
(1) Generate Candidate Images with Prompt: meadow trail lithograph
(2) Select and Upscale Image
(3) Use Freehand Editing Tool to Select Region
(4) Generate Candidate Images with Prompt: meadow stream lithograph
(5) Select and Upscale Image
The image was further modified by repeating the editing process:
Other generative AI systems also offer tools that similarly allow users to exert control over the selection, arrangement, and content of the final output.
Unlike prompts alone, these tools can enable the user to control the selection and placement of individual creative elements. Whether such modifications rise to the minimum standard of originality required under Feist will depend on a case-by-case determination.138 In those cases where they do, the output should be copyrightable.
Similarly, the inclusion of elements of AI-generated content in a larger human-authored work does not affect the copyrightability of the larger human-authored work as a whole.139 For example, a film that includes AI-generated special effects or background artwork is copyrightable, even if the AI effects and artwork separately are not.
My take: I need more time to digest this Report, but I do find the softening or clarification of the Office’s position in II.F Modifying or Arranging AI-Generated Content a step in the right direction, although I disagree that you can sever that type of selecting, editing, and adapting from iterative prompting itself.
2 responses to “Copyright Office Report on Authorship & AI (PDF)”
I found several of the statements in the report to be contradictory in terms. It appears as though they are trying very hard to force the use of generative a.i. into a separate and unique scenario without forcing generative a.i.-specific rules or risking any suggestion that novel legislation must be created to handle it. The ultimate conclusion that the human elements of a work may enjoy copyright protection without detailing where the human element begins and ends and leaving it on a case/by/case scenario with vague terms on adapting a different stance should generative a.i. tools evolve to allow more human creative control is as useful as a bicycle is to a fish.
And thus the copyright office’s reply in Allen v. Perlmutter, 1:24-cv-02665, (D. Colo.) was filed.