Key Takeaways | Copyrights and AI: Recent Guidance for Protecting Your Works

The US Copyright Office recently released the second part of its “Report on Copyright and Artificial Intelligence,” which provides guidance on how content generated by artificial intelligence (AI) is treated under copyright law and what creators and businesses need to do to protect their works.

During this webinar, Sarah Bro and Jennifer Mikulina explored the current state of the law in this area. They gave a high-level overview of copyright law and the unique challenges of AI-generated works and examined how existing copyright laws will cover such outputs.

Top takeaways included:

1. The US Copyright Office reaffirms human authorship requirement for copyrightability. With respect to the copyrightability of outputs generated by AI systems, human authorship remains fundamental, and works of authorship created entirely by AI cannot be protected by copyright in the US. Whether work that includes AI-generated content is protectable is determined a case-by-case basis. Each work requires a fact-specific analysis to assess the type and level of human contribution necessary to protect the AI outputs under US copyright law.
2. While creativity in prompts is still considered insufficient, use of AI as a tool can lead to partially copyrightable works. The creation of AI prompts alone does not provide sufficient human control to make a user of an AI system the author of the output. However, the use of AI does not automatically disqualify an item from being copyrightable, if there is sufficient human creative input. A human author’s altering or augmenting an AI-generated output can result in those modifications being copyrightable. Applicants must disclose any AI use when applying for copyright protections so that the US Copyright Office can assess which portions of a work are copyrightable. Keeping clear records of human contributions to a work is helpful for navigating the application process (or any later disputes).
3. The international consensus continues to evolve, with some countries requiring greater or lesser degrees of human creative input to produce copyrightable work. Some countries are likely to grant broader rights to AI-generated works than those currently authorized by the US. However, South Korea, Japan, and China have confirmed that copyright protection requires some degree of human authorship. This is a developing area of the law that is likely to evolve as technology changes and advances.