Understanding Generative AI
Earlier this year, Goodwin published a video making the point that it is not currently possible to copyright generative AI outputs. This is true for outputs that are created solely by an AI model (including outputs that are generated in response to prompts from humans). That is because copyrights can only be issued to humans — and only to humans who contribute to the creation of the work that would be copyrighted.
In this piece, we explore whether a work can be copyrighted if it contains AI-generated material and substantial contributions from a human that were essential to the creation of the work. Although the courts have not directly weighed in on this possibility, jurisprudence suggests that the answer could be yes, under certain conditions. To understand why, it is important to first understand the important role of the concept of authorship in copyright.
A Work Created Solely by AI Cannot Be Copyrighted
Copyright protection is available for “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device” (17 US Code 102).
This statement outlines a three-part test for determining whether a work generated by AI is eligible for copyright:
- Is it “original”? As determined in Feist Publications Inc. v. Rural Telephone Service Co. Inc., a work is original if it is independently created and possesses a minimal degree of creativity. Anything that possesses some creative spark, no matter how crude, humble, or obvious, could meet the bar for originality. A creative work generated solely by AI could pass this test.
- Is it “fixed”? According to 17 US Code 101, a work is considered fixed in a tangible medium if it is embodied such that it can be perceived, reproduced, or otherwise communicated for a meaningful duration (i.e., is not transitory). A creative work generated solely by AI could pass this test as well.
- Is it a “work of authorship”? This is where the complication arises. Under copyright law, authorship is attributed to the creator of the original expression in a work. However, the Trade-Mark Cases determined that copyright only protects “the fruits of intellectual labor” that “are founded in the creative powers of the mind.” As such, a copyright will only be granted if it is determined that a human created the work (Burrow-Giles Lithographic Co. v. Sarony). A creative work generated solely by AI could not pass this test.
In fact, in 2022, the US Copyright Office determined that a work “autonomously created by artificial intelligence without any creative contribution from a human actor” was “ineligible for registration.”1 This confirms long-standing jurisprudence that copyrights can only be granted to humans (see sidebar, “Only Humans Can Be Authors”).
Moreover, according to the Copyright Office’s understanding of generative AI models that are currently available, users do not have sufficient creative control over how AI interprets prompts or generates material. When a generative AI model produces complex written, visual, or musical works in response to a prompt from a human, the “traditional elements of authorship” are determined and executed by the technology, not the human user. Most prompts function like instructions to a commissioned artist, even when prompts are iterative.
Works Involving AI and Human Authors Could Potentially Be Copyrighted
The law is evolving in this area, and it seems increasingly likely that copyrights could be made available for works that contain material generated by AI if a human contributed to the creation of the work in a way that qualified the human for authorship.
Three concepts are particularly important to understanding the conditions under which this could happen:
- Compilation. If a human selects or arranges AI-generated material in a sufficiently creative way, 17 US Code 101 could apply, meaning “the resulting work as a whole constitutes an original work of authorship.” In a compilation that includes AI-generated material, the computer-generated material will not be protected outside of the compilation.
- Modification. An artist may modify material that was initially generated by AI to such a degree that the changes meet the standard for copyright protection.2 As noted above, the originality threshold under the Copyright Act is low, so a human element added to such AI-created work does not need to be complex or highly sophisticated. 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.
- AI as a tool. The law has long recognized the use of technological tools as part of a human-led creative process. If the AI-generated model functions as a tool and the creativity still comes from a human being using the tool, the output can be protected by copyright.
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In the years to come, the courts and the US Copyright Office will surely consider many cases that will shed new light on the applications of copyright law to works enabled by generative AI. These decisions may increasingly hinge on how AI was used to create the final work and what role humans had in the process. New precedents will likely be set as a result, based on careful case-by-case examinations (as in 17 US Code 103(b)). Based on what we know today, it seems possible that AI could have a role to play in generating material that would be eligible for copyright in the future.
 “Second Request for Reconsideration for Refusal to Register A Recent Entrance to Paradise,” Copyright Review Board, Feb. 14, 2022.
 According to 17 US Code 101, “A ‘derivative work’ is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ‘derivative work.’”