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US Copyright Office says Works Containing AI-Generated Content can Obtain Copyright Protection…Sometimes

The US Copyright Office (“USCO”) has issued a policy statement for guidance on the copyright registrability of works containing AI-generated content. The policy statement is effective 16 March 2023. The issuance of the policy statement follows the USCO’s decision in February to limit the copyright registration of a comic book that contained AI-generated images.

In its policy statement, the USCO reiterates that copyright registration requires human authorship. According to the USCO, a work where AI acts as an assisting instrument can be registered whereas a work where AI conceives and executes the traditional elements of authorship cannot be registered. When an AI technology generates complex written, visual, or musical work in response to a prompt input by a human, that work cannot be registered. However, an AI-generated work with sufficient human authorship can be registered. For example, an AI-generated work that is modified by an artist may be registered depending on the degree of modification.

The USCO has also stated that a copyright registration applicant has a duty to disclose the inclusion of AI-generated content in any work that is submit for registration. If the applicant has used AI to create the work, the applicant must specify what parts of the work were contributed by human authorship. The applicant should exclude from the registration application any AI-generated content that is more than de minimis.

The duty to disclose the inclusion of AI-generated content in works submitted for registration extends to pending applications and applications that have been processed and resulted in a registration.

For more information, see here.

For the full text of the USCO’s policy statement, see here.

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