Lawmakers Drill US Copyright Head Over Protections for AI Art

US Copyright Office Director Shira Perlmutter clarified to a House committee Wednesday that the human-created elements of an AI-assisted artwork can receive copyright protection, but the line is often blurry.

That question has vexed creators as the office and courts have begun to consider the copyright implications of powerful generative AI art programs.

Rep. Darrell Issa (R-Calif.), chair of the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet, posed to Perlmutter a series of examples where artists use an AI program in their work. He asked whether an author who writes a novel but then uses an AI program to change 40% of the words to improve the book can receive a copyright registration.

“You’ve got an original copyrightable work by a human, which is the book, and then a derivative work created by a machine which would probably not be copyrightable as a separate work,” Perlmutter said.

“These are not easy decisions or easy lines to draw,” she continued. “When I talk about the Copyright Office being a natural laboratory for this, we’re looking at the individual applications and making case-by-case determinations.”

The office published guidance earlier this year explaining that it wouldn’t grant copyright registrations for works created exclusively with AI. A federal court in Washington, D.C., this summer upheld the office’s conclusion that copyright protection extends only to human creativity.

Perlmutter said her office requires copyright applicants to disclose the use of AI in their registration applications and describe what the human contribution was.

“We do take as factual the statements that are made in an application unless we have some reason to think they are not accurate,” she said in response to a question from Rep. Madeleine Dean (D-Pa.) about concerns that copyright owners would lie on their applications.

Perlmutter noted that there are potential legal penalties for lying on copyright applications, and said the office will communicate with applicants whose work clearly contains AI-generated elements.

Earlier this month the office denied a copyright registration for an award-winning digital image titled “Théâtre D’opéra Spatial,” finding that the artwork contained more than a “de minimis” contribution from an AI program. Artist Jason Allen didn’t originally disclose in his application that the work contained AI-generated content, but the office said it was aware of the image because it received national attention after winning the 2022 Colorado State Fair’s fine art competition.

Lawmakers also pressed Perlmutter on whether copyright law could require companies to obtain licenses to use copyrighted works in the data used to train their AI tools.

She said the US Supreme Court’s recent decision on copyright law’s fair use doctrine in Andy Warhol Foundation v. Goldsmith may influence that legal debate, which is currently playing out in a number of lawsuits by authors, artists, and coders against major AI companies. Justice Sonia Sotomayor’s opinion emphasized the need to look at whether copying is done for a commercial purpose that could compete in the same market for the original work.

But the fair use question is very much “up in the air,” Perlmutter said.

She noted that while Congress has worked well with the music industry to create licensing systems for streaming platforms, creating a similar structure for AI training data could prove more complicated.

“It would involve all types of works, not just musical works, and would be far reaching in its scope,” she said. “There are a lot of practical issues involved that need to be explored, including how the license fees would be set, how it would be distributed, and how it could be made feasible given the volume of works that would be involved.”

Perlmutter said the office will be able to provide more clear answers to AI-related copyright issues when it releases a study in the first half of 2024. The office extended the public comment period for the study to the end of November.