28 Copyright and Generative AI

The U.S. Copyright Office firmly upholds that copyright protection applies only to works resulting from human creativity, aligning with constitutional and statutory interpretations. The term “author” inherently excludes non-humans, supported by key judicial decisions, such as the Supreme Court’s ruling in Burrow-Giles Lithographic Co. v. Sarony. This decision emphasized that copyright protection extends to works representing original intellectual conceptions of human authors. Federal appellate courts similarly affirm that only humans can be authors under the Copyright Act, excluding animals or non-human entities.

The Office’s longstanding registration policies reinforce this principle, consistently requiring human authorship for copyright eligibility. Historical and current editions of the Compendium of Copyright Office Practices stress that works must originate from a human being to qualify for copyright. Works produced by machines or automated processes without human creative input are not registrable. This policy ensures that copyright remains a protection of human intellectual effort and creativity.

The U.S. Copyright Office evaluates whether a work with AI-generated material can be registered based on the human involvement in the creative process.

• If AI merely assists in expressing the author’s original mental conception, the work may qualify for copyright protection.
• However, if AI independently generates the creative elements, the work lacks human authorship and cannot be registered.
• For instance, works produced by AI based on human prompts, without human creative control over the final output, are not protected.
• Conversely, human selection, arrangement, or significant modification of AI-generated content may support a copyright claim, protecting only the human-authored aspects.

U.S. Copyright Office. Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence. 2023, www.copyright.gov/ai/ai_policy_guidance.pdf.