AI and rights: latest guidance from the US Copyright Office
On June 28, 2023, the United States Copyright Office held a webinar to provide additional guidance to copyright applicants who have created works with the assistance of artificial intelligence (AI). In short, the office has directed that applicants must disclose that a portion of the work was created with the assistance of AI, if the AI contribution was more than merely a de minimis amount. In other words, any “appreciable” contribution made by AI must be disclosed to the office in connection with an application.
Yet, the amount of detail required in the application is minimal. The office has suggested that an application need only state that the work contains AI-created content. The author need not parse out which portions or elements of the work were generated by AI. Accordingly, an applicant need only include a short, simple statement disclosing that AI contributed to the work.
The Feist standard
How does an applicant determine whether AI has made more than a de minimis contribution to the work? The office states that the test is whether the AI-generated material, standing on its own, if it were created by a human, would be copyrightable. Specifically, does the AI-generated portion satisfy the copyrightability standard set forth in Feist Publications v Rural Tel Serv, 499 US 340 (1991)? If the AI’s portion of the work does not meet the Feist standard, then the applicant need not disclose that AI assisted in the authorship of the work.
Notably, this is not a new requirement pronounced by the office but is further gloss on the existing and firmly established requirement that an applicant discloses if their work includes unclaimable material. Such unclaimable material has long included, for example, previously published material, previously registered material, material already in the public domain or copyrightable material already owned by another. Now, the office has made clear that AI-generated material falls within that same rubric.
The office gave some noteworthy examples of when the use of AI—although important and perhaps even central to the author’s work—need not be disclosed in an application. The office used the example of a creator who used AI to overcome “writer’s block” and to help the creator develop plot points, characters, and even entire themes of a work. In those instances—where the author used AI for a “brainstorming”-type purpose and not for the actual generation of the work—the use of AI need not be disclosed.
Key takeaways
During the webinar, the office also gave some interesting practical pointers for applicants. Some examples:
