As the Office affirmed in the Guidance, copyright protection in the United States requires human authorship.
No court has recognized copyright in material created by non-humans, and those that have spoken on this issue have rejected the possibility.
It doesn't matter how hard you work.
- Based on the functioning of current generally available technology, prompts do not alone provide sufficient control.
- Repeatedly revising prompts does not change this analysis or provide a sufficient basis for claiming copyright in the output.
- The time, expense, or effort involved in creating a work by revising prompts is irrelevant, as copyright protects original authorship, not hard work or “sweat of the brow.”
If AI generates the final image:
- Inputting a revised prompt does not appear to be materially different in operation from inputting a single prompt.
- By revising and submitting prompts multiple times, the user is “re-rolling” the dice, causing the system to generate more outputs from which to select, but not altering the degree of control over the process.
- No matter how many times a prompt is revised and resubmitted, the final output reflects the user’s acceptance of the AI system’s interpretation, rather than authorship of the expression it contains.
- There may come a time when prompts can sufficiently control expressive elements in AI-generated outputs to reflect human authorship.
- If further advances in technology provide users with increased control over those expressive elements, a different conclusion may be called for.
- When a human inputs their own copyrightable work and that work is perceptible in the output, they will be the author of at least that portion of the output.
- Their own creative expression will be protected by copyright, with a scope analogous to that in a derivative work.
Modifying or Arranging AI-Gen Content:
- Generating content with AI is often an initial or intermediate step, and human authorship may be added in the final product.
- As explained in the AI Registration Guidance, “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.’”
- A human may also “modify material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection.”
Using AI does not negate copyright.
- The inclusion of elements of AI-generated content in a larger human-authored work does not affect the copyrightability of the larger human-authored work as a whole.
- For example, a film that includes AI-generated special effects or background artwork is copyrightable, even if the AI effects and artwork separately are not.
