Katherine O’Malley
Associate Editor
Loyola University Chicago School of Law, JD 2025
The objective of copyright law is to protect certain rights of a human author. But what happens when a nonhuman author creates something that is original, fixed, and has a minimal degree of creativity? Well, in the wild case of Naruto v. Slater, animals cannot have copyright protection in a “Monkey selfie.” As the technological world advances, the latest dispute that has everyone going bananas is AI and copyright protection. The Copyright Office will not register works “produced by a machine or mere mechanical process” such that there is no creative input from a human author because this kind of protection goes against the objective of copyright law.
U.S. Copyright Office as a regulator
Congress has delegated authority to the U.S. Copyright Office (the Office) to develop regulations in all things copyright law. The Copyright Office is “committed to helping fulfill copyright’s Constitutional purpose and to promote creativity and free expression for the benefit of all.” Although copyright protection exists from the moment the work is created, an author must register their work with the Copyright Office to bring suit for copyright infringement against the infringing party. The Copyright Office examines thousands of claims per year, with an average of over half a million registrations annually. Copyright law is already complex, but now AI has thrown a wrench in the works.
As is the first step in any legislative or regulatory action, the Copyright Office is conducting a study on the generative AI and Copyright law. The Notice of the study states that they intend to explore the scope and level of human authorship for copyright claims of material produced in whole or in part by AI. Although seemingly new, the Copyright Office has faced similar issues regarding “authorship” with advances in computers. The Notice cites to the example that authors have used machines such as typewriters and computers to make their copyright-protected works.
Yet, the issue remains: “whether the ‘‘work’’ is basically one of human authorship, with the computer merely being an assisting instrument, or whether the traditional elements of authorship in the work… were actually conceived and executed not by man but by a machine.”
Bird’s eye view of Copyrightable protection for AI generated works
Because copyright law has long mandated human authorship for the registration of a work, the analysis should seem easy for whether AI work is copyrightable. But there are many nuances. In the Copyright Office’s review of “A Recent Entrance to Paradise,” the review board attempts to clarify this issue. The U.S. District Court for the District of Columbia affirmed the Office’s decision in Thaler v. Perlmutter. “A Recent Entrance to Paradise” (“the Work”) was created by the “Creativity Machine” and Thaler, a human advocate for the machine, attempted to register the Work with no success. In this case, it was undisputed that the work had no human input and was solely created by an autonomous machine. This decision recounts case law that defines copyright law in practice such that copyright law is designed to protect human creativity and works created by a human author, not “creations of divine beings.” The decision goes on to explain the dawn of the National Commission on New Technological Uses of Copyrighted Works (“CONTU”) and how “the eligibility of any work for protection by copyright depends not upon the device or devices used in its creation, but rather upon the presence of at least minimal human creative effort at the time the work is produced.”
Naturally, the next issue is about AI works created with human input. In one claim, the Office determined that there was copyright for the human-authored text and human selection and arrangement of the text and images, but no copyright for the AI generated images themselves.
Regulations to come?
In March 2023, the Office released a Statement of policy which clarifies that copyright protection will be afforded only to human-authored aspects of works created using AI. Moreover, it explicitly states that the policy does not ban any use of technological tools used in the creative process. Furthermore, the policy outlines that applicants have a duty to disclose the use of AI-generated content along with a brief explanation of the human contributions associated with the content.
In August 2023, the current study by the Office seeks public comments on the following: “(1) the use of copyrighted works to train AI models; (2) the copyrightability of material generated using AI systems; (3) potential liability for infringing works generated using AI systems; and (4) the treatment of generative AI outputs that imitate the identity or style of human artists.”
As technology advances, distinguishing between human and machine contributions in creative works becomes increasingly challenging. The recent Copyright Office policy affirms protection for human-authored elements in AI-generated works without prohibiting the use of technology, representing a balanced approach. Furthermore, the Copyright Office’s study on generative AI and copyright law reflects their willingness to adapt to the evolving technological landscape. These actions demonstrate the Copyright Office’s proactive stance in addressing these issues and striving for a fair compromise. Given that AI technology is here to stay, embracing and guiding its integration into the creative process is likely a prudent move.