Can an AI-Generated Work Be Protected by Copyright Law?

The U.S. Copyright Office has maintained, to date, that the Copyright Act protects “original works of authorship,” and that to qualify as an “original work of authorship” a human must create the work. For this reason, the U.S. Copyright Office requires all applications for copyright to identify and describe any AI-generated content in the work for which protection is sought, as well as specify the human author’s contributions to the work. 

The U.S. Copyright Office’s position is that the Copyright Act provisions governing a copyright’s lifecycle— including its creation, conveyance, duration, and renewal—show that a human must be involved in authoring the work. The U.S. Copyright Office supports this position with the following:

• Copyright creation presumes human authorship. The Act’s treatment of copyright creation presumes that authors are human. Under the Act, “[c]opyright protection subsists” upon an original work of authorship’s creation and fixation in a tangible medium, and a copyright “vests initially in the author or authors of the work.,” and that these provisions would necessarily exclude a machine.
• Transfers and licenses must be signed by humans. The Copyright Act’s treatment of copyright transfers and licenses “is not valid” unless it is “in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.” A machine cannot comply with this requirement.
• Only humans can terminate copyright grants. Except for works “made for hire,” an author may terminate his or her prior “grant of a transfer or license” by timely serving a “signed” “writing” on the grantee. An author’s right to terminate persists “notwithstanding any agreement to the contrary,” and ensures that “all rights … covered by the terminated grants revert to the author.” These terms make clear that a machine cannot be an “author” under the Copyright Act because a machine lacks the capacity to enjoy and execute these statutory rights.
• Rights pass to human heirs upon an author’s death. Further confirming that an author must be human, the Copyright Act states that the rights to terminate transfers and licenses pass to the author’s family upon death. If the “author is dead, his or her termination interest is owned, and may be exercised,” by the deceased author’s “widow or widower,” “surviving children,” or “grandchildren.” In these ways, the statute again equates an “author” with a natural person. A machine cannot give effect to any of these statutory terms. 
• Copyright duration is measured by human life. The statutory text specifying how to calculate a copyright’s duration confirms the human-authorship requirement. For one thing, the Copyright Act generally measures the period of protection by the author’s “life” and “death.” Subject to certain exceptions, copyright “endures for a term consisting of the life of the author and 70 years after the author’s death.” 
• Provisions on life, death, and nationality confirm human authorship. Provisions concerning life, death, and nationality presume that an author is human; they would be meaningless were the “author” to be a machine. 

Since at least the 19th century, the Supreme Court’s copyright case law has underlined that authorship depends on human involvement in creating the work, when it extended copyright protection to photographs, finding that such protection hinged on human authorship. To warrant copyright protection, the Court concluded photographs must be “representatives of original intellectual conceptions of the author.” The photograph at issue qualified for copyright protection due to the human photographer’s creative choices, such as “posing the [subject] in front of the camera, selecting and arranging the costume, draperies, and other various accessories,” and “arranging the subject so as to present graceful outlines” and “evoking the desired expression.” The human input in (and creative control over) the work drove the Court’s conclusion that copyright could attach. 

While the photographer could not produce the “work of art,” the photograph, without “[p]hotographic technology”, which in many ways could be seen as mirroring “the development and use of AI” because both can be thought of as creative tools, the Supreme Court contrasted the “merely mechanical” use of a device lacking “novelty, invention, or originality” with “an original work of art” that is “the product of [the photographer’s] intellectual invention, of which plaintiff is the author.” 

The position of the U.S. Copyright Office is that just as the user (or manufacturer) of the camera used by the photographer could not have claimed the camera itself as the “author” of any photograph captured with it, one cannot claim his machine or computer, using AI, as the “author” of any image “autonomously” generated by it. Instead, even as humans channel their creativity through new devices and technologies, authorship remains a human enterprise.

And what if a work generated through the use of AI were eligible for copyright protection? Who would be the person or entity entitled to be the copyright holder? Would it be the person who developed the AI technology used to create the work? The manufacturer or owner of the device that was operated by the AI program and which created the physical manifestation of the work? Or, would it be the individual who was using the AI program and feeding the terms and parameters into the AI program so that the program had directions as to what was to be created? Would each have a separate claim?

As it currently stands, use of AI for the production of art, books, publications, advertisements, and campaigns, as well as entertainment material, could lead to a generation of materials that are not entitled to protection by copyright. However, as with all advances in technology, governments lag behind in revising existing, and developing new legislation and rules to address innovative technology. Therefore, do not be surprised for the courts to continue to follow the existing legislation and the case law that has interpreted it, and push any revisions of existing, or the creation of new legislation addressing this issue to Congress to sort out.

Need Legal Guidance on AI and Copyright Law? Contact Lerner and Weiss APC Today!

As AI technology continues to evolve, understanding the complexities of copyright law is more important than ever. If you have questions about how AI-generated works are protected or need legal assistance with intellectual property issues, our experienced attorneys at Lerner and Weiss APC are here to help.

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