Amid the rise in adoption of generative artificial intelligence (“AI”) platforms, including by artists, which reached new heights this year, the Copyright Office is tackling the impact of this budding technology on creative works. The Office revealed in August 2023, for example, that it was seeking comments in connection with a study of the law and policy issues posed by AI systems that come hand-in-hand with the onslaught of complicated questions about authorship and infringement (and fair use), and as a growing number of copyright-centric lawsuits are being waged against generative AI giants like OpenAI.
In a notice published in the Federal Register in August 2023, the Copyright Office stated that it is seeking insight on “the use of copyrighted works to train AI models, the appropriate levels of transparency and disclosure with respect to the use of copyrighted works, and the legal status of AI-generated outputs” not only to inform its study and help it assess whether legislative or regulatory steps in this area are warranted. (For a quick dive into the Federal Trade Commission’s comment on the subject, you can find that here.)
The call for comments came several months after the Copyright Office issued a statement of policy in order to “clarify its practices for examining and registering works that contain material generated by the use of AI technology.” Because it receives “roughly half a million applications for registration each year,” the Copyright Office said in a March 2023 statement that it “sees new trends in registration activity that may require modifying or expanding the information required to be disclosed on an application.”
> One such development: The use of “sophisticated AI technologies capable of producing expressive material.” For some background, the Office asserts that “these technologies ‘train’ on vast quantities of preexisting human-authored works and use inferences from that training to generate new content. Some systems operate in response to a user’s textual instruction, called a ‘prompt.’ The resulting output may be textual, visual, or audio, and is determined by the AI based on its design and the material it has been trained on.”
All the while, the U.S. Copyright Office (“USCO”) has been reviewing and making decisions on applications that center on generative AI, shedding light on how it views issues like authorship and how/the extent to which the involvement of generative AI needs to be disclosed in order to enable Copyright Office examiners to make determinations on applications. Against this background, we have put together a running timeline of the Copyright Office’s decisions (and any corresponding appeals/developments) on this front …
(1) AI Machinations: Tangled Webs and Typed Words
Following an initial refusal and appeal in January 2024, the U.S. Copyright Office granted a registration to Elisa Shupe for her novel “AI Machinations: Tangled Webs and Typed Words,” which she created using ChatGPT. Specifically, the narrow registration, which was granted in April 2024, gives protections to Shupe exclusively for her “selection, coordination, and arrangement of text generated by artificial intelligence,” and does not extend to the text, itself. In essence, the registration – which is backdated to October 10, 2023 – enables Shupe to take legal action against parties that replicate the book in its current form but likely does not provide her with recourse in the event that the text is rearranged without her authorization.
Shupe, who initially filed an application for registration with the USCO in October 2022, created the work by entering custom commands into OpenAI’s ChatGPT program and then making edits to the text outputs. In fact, counsel for Shupe argued on appeal that she made significant edits to the ChatGPT-generated text, “adjusting almost every line in some way, from changes in word choice to [sentence] structure.”
(2) A Recent Entrance to Paradise
On November 3, 2018, Stephen Thaler filed an application to register a copyright claim in a 2-D work, called “A Recent Entrance to Paradise,” identifying the author of the work as the “Creativity Machine,” an AI system that he created. In his application, Thaler stated that the artwork work “was autonomously created by a computer algorithm running on a machine” and that he was “seeking to register [the] computer-generated work as a work-for-hire to the owner of the Creativity Machine,” which was, of course, himself.
On the heels of the USCO refusing to register the work, which prompted Thaler to file suit against the USCO and Register Shira Perlmutter, Judge Beryl A. Howell of the U.S. District Court for the District of Columbia stated in a memorandum opinion in August 2023 that U.S. copyright law “protects only works of human creation,” and AI-generated creations fall outside of such bounds. In her opinion, Judge Howell said that the case centers exclusively on “the legal issue of whether a work autonomously generated by an AI system is copyrightable.”
In considering Thaler’s application for “A Recent Entrance to Paradise,” which Thaler represented as being created without any human involvement, the court upheld the USCO’s conclusion that “this particular work will not support a claim to copyright” because the work “lack[s] human authorship and thus, no copyright existed in the first instance.” The USCO “did not err in denying the copyright registration application presented by [Thaler],” according to the court, as U.S. copyright law “protects only works of human creation.”
Counsel for Thaler said that they “disagree with the court’s interpretation of the Copyright Act,” and filed an appeal to the U.S. Court of Appeals for the District of Columbia Circuit in October 2023.
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