AI Copyright Guide Has Lawyers Asking Where to Draw the Line

The US Copyright Office’s new guidance on protections for art, music, and other works created with the assistance of artificial intelligence raises more questions on human involvement that will likely have to be answered by courts, attorneys say.

AI-assisted works can be registered for a copyright if there is sufficient human authorship, the agency said in a policy statement published Thursday. For example, an artist could potentially secure a registration when they select, arrange, or modify AI-generated materials in creative ways.

But that creates a gray area ripe for different interpretations, attorneys said.

“If I’m an artist looking at this I could be like, okay, you’ve kind of given us a lot of nothing,” said intellectual property attorney Vivek Jayaram, founder of Jayaram Law. “Because how do we know what that line is?”

The agency also introduced other questions to a legal landscape that has only grown murkier with the explosive rise of generative AI programs like ChatGPT, Dall-E, and Midjourney. These include when a prompt entered into a program can qualify for copyright protection.

“I can see a whole subset of issues coming out of the copyrightability of the prompts in and of itself,” said Megan Bannigan, an IP partner at Debevoise & Plimpton LLP.

Ultimately, it will likely fall to courts to parse out the factual situations in which AI-assisted works can be registered for a copyright.

“The Copyright Office really isn’t in a position in the way an adversarial litigation based system is to work through the facts surrounding some of these claims about exactly what level of contribution a person has made,” said Ryan Abbott, an IP partner at Brown Neri Smith & Khan LLP.

Human Control

The Copyright Office’s guidance comes about a month after the agency granted a limited copyright registration for an AI-assisted graphic novel titled ‘Zarya of the Dawn” by artist Kris Kashtanova.

Although the comic’s text and the work as a whole were registered, individual images generated by text-to-image program Midjourney were not.

A reproduction of the cover page and the second page of the “Zarya of the Dawn” comic is shown.

Source: US Copyright Office decision

The Copyright Office emphasized that its latest policy “does not mean that technological tools cannot be part of the creative process,” citing the use of programs such as Adobe Photoshop to create works that qualify for protection.

“In each case, what matters is the extent to which the human had creative control over the work’s expression and ‘actually formed’ the traditional elements of authorship,” it said.

Abbott, who represents computer scientist Stephen Thaler in a lawsuit against the Copyright Office to register an AI-created work, said it is difficult to make sense of the agency’s guidance procedurally.

There is a spectrum between Photoshop and the different ways in which generative AI systems behave and involve varying levels of human inputs, he said, not bright lines.

AI Prompts

A footnote in the guidance adds: “While some prompts may be sufficiently creative to be protected by copyright, that does not mean that material generated from a copyrightable prompt is itself copyrightable.”

Bannigan said it raises the question of whether giving a direction to an AI program is in itself creative and original enough to be protected by copyright.

“Can these prompts receive copyright protection, and what does that mean?” she asked.

The prompt would have to satisfy the originality threshold required to copyright a work, Bannigan said.

“Even though originality is a low bar, we’re not going to see copyright protection given for basic questions that you ask ChatGPT or basic instructions that you give to Midjourney or Dall-E,” she said. “Maybe this is a tool that artists can use but they have to get very creative about what they’re looking for.”

Jayaram said in some ways, the Copyright Office seems to be imitating their approach with computer source code, where the output isn’t protectable but the actual code is.

However, even if an artist manages to register a prompt, they might find difficulty enforcing the copyright, he said.

“If you are an artist, and you create a work and you have protection in the prompt, you would essentially be keeping your eyes out in the public for additional other works that are substantially similar, but it’s going to make enforcement really hard,” he said.

‘Commissioned Artist’

Attorneys pointed out that the guidance also likens AI prompts to “instructions to a commissioned artist” who “makes the creative decisions.”

“In some ways, they’re having it both ways,” said Van Lindberg, an attorney at Taylor English Duma LLP who represents Kashtanova.

What the office fails to realize is that the “only creativity in an AI-assisted work must necessarily come from the human that uses the tool,” he said.

Lindberg also distinguished text generators—which create written works that push the boundaries of human authorship—and images created through user prompts.

Given the human’s control of the content, lighting, subject, and framing, AI-assisted image creation is more akin to the work of a human photographer, he said. “It doesn’t matter that the scene is generated instead of captured.”

Bannigan said she found interesting the Copyright Office’s reliance on an 1884 US Supreme Court decision, which said that photographs are eligible for copyright as “representatives of original intellectual conceptions of the author.”

“Today, when we have our iPhones or our smartphones that we can just press a quick button and take a photograph, are they still really representatives of original intellectual conceptions of the author?” she asked, questioning the difference between inputting a prompt in an AI generator and hitting a button on a phone.

“I definitely see some tension here,” she said. “I’m wondering in the future if we’re going to see people taking issue with that.”

To the Courts

Given the confusion surrounding AI, attorneys said they’re keeping an eye out for litigation that would help clarify the Copyright Office’s guidance.

“Ultimately, it is for the federal courts to take this guidance and carve out some actual rules through examples,” Jayaram said.

The Copyright Office also announced on Thursday that it will be holding a series of listening sessions and has launched a new AI webpage. “We look forward to public input and feedback throughout the coming months,” the office said in a statement to Bloomberg Law.

With the rapid ongoing development and penetration of AI, Lindberg said it’s possible the Copyright Office changes its position on the issue in the near future.

“This is one place where the technology is moving a lot faster than the law,” he said.