Scott E. Rogers

March 30, 2023 – On March 16, 2023, the U.S. Copyright Office (the Office) issued formal guidance on the registration of Artificial Intelligence (AI)-generated works, and announced a new initiative to further examine the copyright law and policy issues raised by AI. This guidance is in response to a recent trend of applications for works generated either in whole or in part by sophisticated AI technologies.

According to the Office, these technologies, often described as “generative AI,” raise a series of questions:

• Is the material they produce protected by copyright?
• May works consisting of both human-authored and AI-generated material be registered? and,
• What information should be provided to the Office by applicants seeking to register them?

Copyright law protects original works of authorship fixed in any tangible medium of expression. However, the recent guidance reiterates that copyright law only protects products of human creativity. As such, the Office will refuse to register “works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author,” according to the U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 101 (3d ed. 2021).

The guidance also stated that copyright applicants have a duty to disclose the inclusion of AI-generated content in a work and to provide a brief explanation of the human author’s contributions to the work. Applicants must explicitly exclude any significant AI-generated material by providing a brief description of the AI-generated content. Failure to disclose the inclusion of AI-generated content in a work may subject the ensuing registration to cancellation or rejection in a future infringement action.

The Office will decide on a case-by-case basis whether works containing AI-generated material are the result of “mechanical reproduction” instead of an author’s own original creation. If the AI determines the expressive elements of its output, e.g., the image or the text, then the work lacks human authorship and the Office will not register it. In cases where a work contains AI-generated material, but a human selected and arranged that generated material in a sufficiently creative way, or a human modified the material originally generated by the AI technology, then the Office will protect the human-authored aspects of the work.

The Office is also requiring copyright owners to update any previously submitted applications, either pending or registered, if the works include AI-generated content. If copyright owners fail to update the application for material generated by AI, they may risk losing the benefits of the registration. While no timeline for updating applications was included in the guidance, it is recommended that copyright owners with previously submitted applications update the applications as soon as possible to disclose any material generated by AI in order to avoid the aforementioned risks.

Ulmer’s Intellectual Property Law Group represents individuals and companies who are seeking copyright protection for their intellectual property from photographs, artwork, computer programs, texts, and much more, including works created with or without AI technology. For additional guidance on protecting your copyrights, please reach out to one of the authors of this client alert or a member of Ulmer’s Intellectual Property Practice Group.

The information provided in this client alert speaks only to the information and guidance we have available as of the date of publication and is subject to change. We will continue to follow further issued guidance and regulations and endeavor to post those updates via our website. This legal update was created by Ulmer & Berne LLP, and is not intended as a substitute for professional legal advice. Receipt of this client alert, by itself, does not create an attorney client relationship. For any questions, or for further information, please contact Jocelyn Smith at jcsmith@ubglaw.com or Scott Rogers at srogers@ubglaw.com.