Artificial Intelligence and Copyright Law: Less Than Meets the Eye

Insights Artificial Intelligence and Copyright Law: Less Than Meets the Eye Mark S. Lee · August 29, 2023

Recent use of artificial intelligence (“AI”)  to create scripts, books, briefs, and other works has increased public interest in AI-related copyright issues, including:

  1. Can AI-created works be protected by copyright law?
  2. Can people claim copyright protection in works they create with the assistance of AI?
  3. Do the creators of AI infringe copyright when they copy into the AI’s “database” third parties’ copyrighted works that the AI uses to generate the works it creates in response to user prompts?
  4. Do the works AI creates after being trained by those third party copyrighted works infringe those third parties’ copyrights?

Judicial evaluation of these issues is only beginning, but variations of them have been asked for decades, and answers are, surprisingly, often not that complicated. Available answers are summarized below.

  1. Can AI-created works be protected by copyright law?

No. Case law, commentators, and the government have  agreed for decades that a copyright “author” must be a human author,  and except for the inevitable contrarian academic dissent, no one has seriously argued otherwise for over 140 years.  A brief summary of U.S. copyright law can help understand why.

Most basically, copyright law protects what you create.  In the language of the Copyright Act, it protects “original works of authorship reduced to a tangible medium of expression,” but does not protect facts, ideas, or commonplace elements of a work.[1]

Who owns the copyrighted work after its creation?  In the first instance, its “author.”[2]

Must the “author” be a human author? Yes. Almost 140 years of case law holds that only aspects of a work attributable to human authorship qualify for copyright protection.

For example, in 1884 the Supreme Court in Burrow-Giles Lithographic Co. v. Sarony[3]  held that an image depicting Oscar Wilde created by the “mechanical process” of photography qualified for copyright protection because, and to the extent that, the person taking the picture made creative decisions regarding the picture’s composition, including pose, appearance, lighting, etc. made by the photographer.

In 1941 a federal court in New York held in Oliver v. St. Germain Foundation[4] that a group of revelations the copyright owner said were dictated by a dead spirit were not protectable by copyright law, because there was no human authorship and they were therefore unprotectable “facts.” The Ninth Circuit Court of appeals in Urantia Foundation v. Maaherra[5] more recently affirmed that what the copyright owner called “revelations” were not protectable by copyright law because there was no human authorship, though it held that the selection and arrangement of the revelations by humans was protectable.

Naruto v. Slater[6] recently held that a monkey’s “selfies” were not protectable by copyright law because the monkey, although it had Article III standing, was not human and therefore did not qualify as an “author.”

Other authorities also have reached the same conclusion.  A national commission empaneled by Congress and the President to study the impact of technology on copyright law issued a report in 1978 which concluded that “there is no reasonable basis for considering that a computer in any way contributes authorship to a work produced through its use.”[7] The Copyright Office has refused to register machine-created works for years,[8]  stating that “[t]o qualify as a work of ‘authorship’ a work must be created by a human being…[T]he Office will not 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.”[9]  Although not binding, Courts give deference to the Copyright Office’s reasonable interpretation of the Copyright Act.[10]

Finally, a district court recently ruled, consistent with Copyright Office guidance, that an AI-generated work was not registrable because it lacked human authorship.[11]

  1. Can people claim copyright protection in works they create with the assistance of AI?

Yes, but only if, and only to the extent that, the human contribution is independently copyrightable. Non-human contributions remain unprotectable in such “joint” works.  That is consistent with longstanding requirements that an author make independently copyrightable contributions to a work to qualify as an author.[12]

          Consistent with this authority, in March 2023 the U.S. Copyright Office has given lengthy guidance about registering AI-assisted works which makes clear that only human, independently protectable human contributions to a work can qualify for copyright protection:

“If a work’s traditional elements of authorship were produced by a machine, the work lacks human authorship and the Office will not register it. For example, when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the ‘traditional elements of authorship’ are determined and executed by the technology—not the human user. Based on the Office’s understanding of the generative AI technologies currently available, users do not exercise ultimate creative control over how such systems interpret prompts and generate material. Instead, these prompts function more like instructions to a commissioned artist—they identify what the prompter wishes to have depicted, but the machine determines how those instructions are implemented in its output.

“For example, if a user instructs a text-generating technology to ‘write a poem about copyright law in the style of William Shakespeare,’ she can expect the system to generate text that is recognizable as a poem, mentions copyright, and resembles Shakespeare’s style. But the technology will decide the rhyming pattern, the words in each line, and the structure of the text. When an AI technology determines the expressive elements of its output, the generated material is not the product of human authorship. As a result, that material is not protected by copyright and must be disclaimed in a registration application.”

“In other cases, however, a work containing AI-generated material will also contain sufficient human authorship to support a copyright claim. For example, a human may select or arrange AI-generated material in a sufficiently creative way that ‘the resulting work as a whole constitutes an original work of authorship.’ Or an artist may modify material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection. In these cases, copyright will only protect the human-authored aspects of the work, which are ‘independent of’ and do ‘not affect’ the copyright status of the AI-generated material itself.”

“This policy does not mean that technological tools cannot be part of the creative process. Authors have long used such tools to create their works or to recast, transform, or adapt their expressive authorship. For example, a visual artist who uses Adobe Photoshop to edit an image remains the author of the modified image, and a musical artist may use effects such as guitar pedals when creating a sound recording. 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.”[13]

  1. Do the creators of AI infringe copyright when for training purposes they copy into the AI’s “database” third parties’ copyrighted works that the AI uses to generate new works in response to user prompts?

That is unclear at the moment, though there may be judicial guidance in the next few months.  A potentially infringing “copy” is made to the extent it is uploaded without permission, but the success of an obvious fair use defense is unpredictable.

“Fair use” is a complicated copyright defense that allows certain kinds of copying in certain circumstances for what usually are deemed to be socially desirable purposes. Explaining it in detail is beyond the scope of this paper. However, at least one appellate court has already held that Google’s efforts to copy every book in the English language to create a searchable database, and to provide digital copies to libraries, was fair use.[14]  If Google can do that for its search engine, can it do it for AI? Why or why not?

  1. Do the works the AI creates with the uploaded third party works on which it was trained those third parties’ copyrights?

Most of the time, probably not under current copyright law. Protectable elements in the underlying works input into the AI for training purposes that the AI uses to create the AI-generated work will likely be so diluted that the output images or text will not be substantially similar reproductions or qualify as derivatives of the underlying works.  Several recently-filed pending cases may decide this issue, and a court in at least one has tentatively advised that it intends to so rule, on either substantial similarity or fair use grounds.[15] Issuance or written decisions may provide greater clarity on this issue.

[1] 17 U.S.C. § 102(a), (b).

[2] 17 U.S.C. § 201(a).

[3] 111 U.S. 53 (1884)

[4] 41 F. Supp. 296 (S.D.N.Y. 1941)

[5] 114 F. 3d 955 (9th Cir. 1997)

[6] 888 F. 3d 418 (9th Cir. 2018)

[7] Final Report of the National Commission on New Technology Uses of Copyrighted Works(“CONTU”) Chapter 3 (1978), http://digital-law-online.info/CONTU/PDF/.

[8] U.S. Copyright Office, Compendium of U.S. Copyright Office Practices (Third) § 313.2 (3d ed. 2014)

[9] Id.

[10] See, e.g., Fox Television Stations, Inc. v. Areokiller, LLC, 851 F. 3d 1002, 1013-14 (9th Cir. 2017) (applying the Copyright Office’s reasonable interpretation of the compulsory license provisions of 17 U.S.C. §111.)

[11] Thaler v. Perlmutter, 2023 WL 5333236 (D.D.C. August 18, 2023)

[12] Thomson v. Larson, 147 F. 3d 195, 200 (2d Cir. 1998); Ashton-Tate Corp. v. Ross, 916 F. 2d 516, 521-22 (9th Cir. 1990) (joint authorship); 17 U.S.C. 101(defining a “collective work” as a “a number of contributions, constituting separate and independent works in themselves…”)

[13] Excerpted from “Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence,”  88 Fed. Reg. 16190 (March 16, 2023), pp 16192-16193, https://www.federalregister.gov/documents/2023/03/16/2023-05321/copyright-registration-guidance-works-containing-material-generated-by-artificial-intelligence.

[14]  Author’s Guild v. Google, Inc., 804 F. 3d 202 (2d Cir. 2015).

[15] See Andersen v. Stability AI Ltd. et al., Case No. 3:23-cv-00201-WHO (2023); “Court Appears likely to Dismiss AI Class Action Lawsuit by Artists,” https://www.artnews.com/art-news/news/ai-class-action-lawsuit-dismissal-hearing-stabilityai-midjourney-deviantart-1234675071/.

Working at the intersection of intellectual property and entertainment, Mark Lee advises celebrities and celebrity estates, studios, and high-tech companies in copyright, trademark, and right of publicity matters.  He has litigated or counseled regarding copyrights, trademarks, rights of publicity, and/or related rights of musicians…Read more

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