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Introduction to AI, Generative AI (GenAI), & U.S. Copyright Law

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Introduction to AI, Generative AI (GenAI), & U.S. Copyright Law
By Justin M. Jacobson, Esq.

The use and growth of artificial intelligence (AI) and more specifically, the expanded mainstream adoption of generative AI (GenAI) software and applications has brought new legal issues related to the usage of AI and GenAI to the forefront of the copyright and intellectual property worlds. For example, the utilization of GenAI software has spurred a series of lawsuits against the companies developing the programs by various stakeholders including entertainment rights holders including one filed by Universal Music Group, Sony Music, and Warner Music Group against AI companies Suno and Udio. This actions are in addition to those undertaken by digital distribution platforms such as Spotify which have removed, blocked, and otherwise combated the mainstream distribution of AI generated songs including those intended to “replicate” other existing artist’s style and protected assets.

Is Generative AI (GenAI) material copyrightable and protected under U.S. copyright law?

To start, when examining the application of U.S. copyright law to generative AI (GenAI) created works, an initial determination of what material produced by the GenAI software, if any, is copyrightable and thus eligible for protection under U.S. copyright law. Accordingly, the Ninth Circuit in NARUTO vs. Slater provided clarity on the application of U.S. copyright law to works created by non-humans. In fact, in this case, the Circuit Court ruled that a work must be created by a “human being,” and that the work created by a monkey in the instance case or by GenAI software, in general, “lacks human authorship” which is required for copyright protection in the United States. This fact means that any work created by a Generative AI program is currently unable to receive copyright protection under U.S. copyright office for the program’s contributions to a finished work.

Similarly, in Thaler v. Perlmutter, the U.S. District Court for District of Columbia reiterated this principle by stating that “[h]uman authorship is a bedrock requirement of copyright” when it agreed with the U.S. Copyright Office’s denial of protection for an art piece that was entirely created by Generative AI software. The District Court stated that the art work was not the “product of human authorship” and instead it was “autonomously created by a computer algorithm.” As of June 2024, this case is currently on appeal to the D.C. Circuit. Similar to the denial of copyright protection in the Thaler case, an award-winning art piece entirely created by GenAi, the “Théâtre D’opéra Spatial” which was created by Matthew Allen was also denied copyright protection due to the individual using a generative AI program to create the piece. Specifically, the U.S. Copyright Office’s March 2023 guidance on AI states that user of a Generative AI program does not “exercise ultimate creative control over how [the AI] systems interpret prompts and generate material” which is why purely Generative AI created works are currently ineligible for copyright protection. The U.S. Copyright Office also added that in the context of generative AI produced works, a case-by-case determination is needed focusing on if a submitted “work’s traditional elements of authorship were produced by a machine.” If this fact is true, then the work “lacks human authorship,” and the Copyright Office will not register it.

U.S. Copyright Office successful registration of works containing Generative AI (GenAI) materials

As a result of the clearly defined parameters articulated for copyright protection in GenAI works, the U.S. Copyright Office stated in its February 23, 2024, letter to the Senate Subcommittee on Intellectual Property that the Office had already registered “well over 100” applications for works containing Generative AI materials. Additionally, the U.S. Copyright Office provided “Copyright Registration Guidance: Works Containing Materials Generated by Artificial Intelligence” which lists the requirements and procedures necessary to apply for and receive protection in a work that contains AI-generated content. Specifically, in order to obtain a U.S. copyright registration for a work containing GenAI material, the Registration Guidance requires that a U.S. applicant seeking to register a work containing more than “de minimis” amount of AI-generated material must disclose that the submitted work contains AI generated material as well as include an explanation of the human author’s contributions to the work (Copyright Registration Guidance: Works Containing Materials Generated by Artificial Intelligence, 88 Fed. Reg. 16190 (Mar. 16, 2023)). Accordingly, the U.S. Copyright Office individually examines each application to determine if anything contained in the GenAI work is protectible. This analysis traditionally focuses on whether the AI material “standing on its own” would be copyrightable if it were human authored. If this fact is true, then a statement disclosing that the work includes AI material must be included with a copyright application (Copyright Registration Guidance: Works Containing Materials Generated by Artificial Intelligence, 88 Fed. Reg. 16190 (Mar. 16, 2023)).

As mentioned, the U.S. Copyright Office has issued copyright registration for works containing Generative AI created material subject to specific limitations that disclaim protection to the AI created works and only extending copyright protection to those contributions solely provided by a human author. For example, a comic book “Zarya and the Dawn” contained AI-generated images that were edited by the author. Since the work contained Generative AI images, the author only received protection for the text of the work which was written entirely by applicant as well as for the “selection and arrangement” of AI-generated images because the author had “selected, refined, cropped, positioned, framed, and arranged” each GenAI-produced work. Protection was denied copyright on the specific images themselves as they were created by AI and not a human. Another similar situation existed with the self-published literary work, the “AI Machinations: Tangled Webs and Typed Words” which was written “extensively” utilizing GenAI software. Similar to “Zarya and the Dawn” copyright registration, the U.S. Copyright Office only provided copyright protection for the “selection, coordination, and arrangement” of the AI-generated content, but it did not extent this protection to the text itself because the book’s words were entirely created by a Generative AI software program.

Some Examples of Generative AI Pending Litigation and Lawsuits

While the U.S. Copyright Office has begun developing and enforcing its own policies and guidelines as it relates to protection of Generative AI created works, including distinguishing between those works entirely created by AI programs and those creations that incorporate both human and AI-generated elements, there have been a series of high-profile lawsuits filed in courts across the country by leading entertainment companies, creative talent, and other interest parties against the technology companies developing and distributing Generative AI software including Microsoft Corporation and Meta Platforms, Inc., among others. As a result of the evolving usage and protection of GenAI works, the following is not an exhaustive list of a few pending lawsuits related to the usage and training of Generative AI software brought by creative content holders. The disposition of these and any cases that come in future may be beneficial in shaping and determining the extent, if any, of the protection applied to Generative AI works under U.S. copyright law.

In addition to the pending lawsuits, there are many state and federal legislative efforts focused on artificial intelligence and its application to the copyright world that is also sure to shape the protection of Generative AI works as well as international and global efforts, including the EU AI Act. Overall, as generative AI continues to expand in its usage and capabilities, the wide-spread adoption and utilization of these technologies will surely follow. Accordingly, any individual utilizing these types of GenAI programs and software, especially for commercial purposes, must be aware of the rights that they receive from the application’s owner and the extent of the protection that may obtain, if any, in the GenAI produced work. Since this area is continually evolving with new lawsuits, statutes, and applications, it is crucial to consult with a competent and experienced attorney with specialized knowledge in the space as well as to stay informed on the latest developments including any potential laws or rulings.

This article is not intended as legal advice, as an attorney specializing in the field should be consulted.

© 2024 Justin Jacobson Law, P.C.