U.S. Copyright Office Says Some AI Can Be Copyrightable

Right now every songwriter and composer is wondering whether they’ll ever work again now that ChatGPT and all of its competitors are now on the scene. While copyright law usually takes a long time to formulate and pass, the U.S. Copyright Office is being proactive and issuing some guidance on just what works and what doesn’t when it comes to copyrighting works that feature artificial intelligence (AI).

The Copyright Office and AI
This is an AI-generated image created by StableFusion

The questions about copyright when AI is used is indeed deep right now. Is it the end user that owns it? The service like ChatGPT? The person that wrote the algorithm? The person that trained it? The person that owns the material that trained the AI? It’s a rabbit hole of questions and most are not definitively answered at the moment.

The First Case For The Copyright Office

The Copyright Office is in the middle of it, as it’s already examining applications that claim copyright of AI-generated material. If you think this just happened, the Office explained that its first case actually came in 2018 when it received an application for a visual work that the applicant described as “autonomously created by a computer algorithm running on a machine.”

The application was denied because the examiner found that the work contained no human authorship, and a number of appeals were also rejected. So we know for sure that you can’t just crank up ChatGPT to dial up a song and then try to copyright it without adding some sort of human touch.

But you say, “Wait, I was the one that wrote the prompts that guided the AI to its result!” The Copyright Office says that’s still a no-go. It says that when an AI “receives solely a prompt from a human and produces complex written, visual, or musical works in response” that still doesn’t constitute human authorship so it can’t be protected by copyright.

But It Can Be Done

That doesn’t mean that you can’t use AI at all though.  If you “select or arrange AI-generated material in a sufficiently creative way” or “modify material originally generated by AI technology,” then it may be protected under copyright. “May” is the operative word here.

In a recent decision regarding a graphic novel called Zarya of the Dawn by author Kris Kashtanova, which included images created using the Midjourney service, the Office said that, ““We conclude that Ms. Kashtanova is the author of the Work’s text as well as the selection, coordination, and arrangement of the Work’s written and visual elements. That authorship is protected by copyright,” but the Midjourney images that were used “are not the product of human authorship” so they are not protected.

None of this applies to music yet, but you can be sure that there are cases coming soon. Like I said in the intro, this is a deep well of uncertainty, but slowly but surely we’re getting some clarity on just were to draw the line on AI copyrights.

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