New report clarifies US copyright rules for AI-created and human-modified art

Artists can now register copyrights in the United States of America for works that have been made with the help of artificial intelligence.

The US Copyright Office issued a report this week to clarify the non-executive branch government office’s position on AI-generated artwork. The study is the second part of a three-part document on the office’s approach to AI.

As copyrights are the intellectual property right designed to protect people’s creative works, the report “analyses the type and level of human contribution sufficient to bring these outputs within the scope of copyright protection in the United States.”

Current IP law dictates that “material generated wholly by AI is not copyrightable” and that of the 10,000 comments received to create the report, the majority agreed with this position.

Where opinions differed was with “generative AI outputs that involve some form of human contribution.”

Register of Copyrights Shira Perlmutter, director of the US Copyright Office, said that their approach was keeping the “centrality of human creativity” in protections for works.

“Where that creativity is expressed through the use of AI systems, it continues to enjoy protection,” Perlmutter said.

Whose art is it anyway?

An AI-assisted work could be copyrightable if an artist's handiwork is perceptible. A human adapting an AI-generated output with “creative arrangements or modifications” could also make it fall under copyright protections.

On the flipside, the report shows the copyright office will continue to reject copyright claims for fully machine-generated content. A person simply prompting a chatbot or AI image generator to produce a work doesn't give that person the ability to copyright that work, according to the report. “Extending protection to material whose expressive elements are determined by a machine ... would undermine rather than further the constitutional goals of copyright,” Perlmutter said.

Not addressed in the report is the debate over copyrighted human works that are being pulled from the internet and other sources and ingested to train AI systems, often without permission or compensation.

This is one of the main points of contention for many creative unions in the US. The Writers Guild of America (WGA) won protections for their members over studios using AI to write films and TV through 2023 strikes.

Now, the WGA is raising concerns about the ways AI uses copyright protected material in their machine learning models. The union fought hard to create the copyright protections for writers’ works, yet companies that are outside of the Hollywood system scrape that data wholesale.

“We see this as a massive theft of our writers' work,” Erica Knox, senior research and policy analyst at the WGA, says. “Just generally speaking too, human creativity is a key ingredient of all the film and TV projects that we all love. Undermining that or removing human creativity means it's less meaningful and enjoyable for everyone.”

Visual artists, authors, news organizations and others have sued AI companies for copyright theft in cases that are still working through US courts. The copyright office doesn't weigh in on those legal cases but says it is working on another report that “will turn to the training of AI models on copyrighted works, licensing considerations, and allocation of any liability.”