Breaking Dawn: Understanding the Copyright Office’s Policy on Works Containing AI-Generated Materials

Background on Kashtanova’s Comic Book

Digital artist Kris Kashtanova registered Zarya of the Dawn, a comic book with dazzling and dystopian imagery generated via Midjourney’s text-to-image AI model, with the U.S. Copyright Office in September 2022. After the Copyright Office learned of Kashtanova’s use of Midjourney to aid in the creation of the comic book, it notified Kashtanova in October 2022 that it would reconsider the registration. In late February, the Copyright Office cancelled Kashtanova’s registration for the images in Zarya of the Dawn, explaining that they are “not the product of human authorship” and, accordingly, are not eligible for copyright protection. It issued Kashtanova a more limited copyright in the compilation and arrangement of the AI-generated images for Zarya of the Dawn.

Although Kashtanova submitted a string of detailed, iterative prompts to Midjourney to generate the images for several futuristic worlds, the Copyright Office reiterated that “sweat of the brow” (in other words, the amount of effort put into creating the work) does not guarantee an applicant copyright protection. According to the Copyright Office, Midjourney generated images in an “unpredictable way” (i.e., Kashtanova did not “actually form” those images), and so Kashtanova was not their author. Kashtanova’s lawyer argued, however, that the Copyright Office erred by failing to account for the level of creativity required to craft the prompt to evoke a desired response from Midjourney.

Overview of Copyright Office Guidance

Last week, the Copyright Office published guidance on its approach to applications that attempt to register AI-generated or assisted works. The guidance states that the Copyright Office will generally afford copyright protection to works that are the “product of human creativity.” For material generated by AI models, the Copyright Office will evaluate them on a case-by-case basis—it will consider whether the AI contributions are merely the result of “mechanical reproduction” or instead of an author’s “own original mental conception, to which [the author] gave visible form.”

The guidance explains that if the human user creatively selects or arranges the AI-generated material into a new work (a nod to Kashtanova’s approach in Zarya of the Dawn) or modifies the AI-generated material such that the modifications independently meet the standard for copyright protection, those compilations or modifications may be eligible for copyright protection. Creators should note that a copyright granted for the selection or arrangement of images would not apply to the underlying AI-generated media. Rather, absent some other legal protection (such as trademarks), a thin copyright protection on a compilation would seemingly not bar third parties from plucking individual AI-generated media out of such works to use in their own (assuming that the author of the original compilation did not modify the AI-generated media in a copyrightable way).

Later this year, the Copyright Office plans to publish a notice of inquiry soliciting public comments on a wide range of copyright issues arising from the use of AI. This notice of inquiry will provide interested parties with an opportunity to publicly share their views on how and whether AI-generated works should be protected by copyright.

Practical Tips

Clients that seek to register works that incorporate AI-assisted or -generated material with the Copyright Office should keep the following takeaways in mind:

• Only human-authored contributions to a work containing AI-generated material are currently eligible for protection under the Copyright Office’s guidelines.
• Applicants can use AI tools to create or modify works that are eligible for copyright protection, and the Copyright Office has emphasized that it is important for those applicants to exercise ultimate control over the expressive elements of the work. The Copyright Office’s recent rulings suggest that the more unpredictable the output of the AI tool, the less assured the applicant will be of a successful copyright registration for the work generated by it.
• When applying for copyright protection, applicants should be truthful in disclosing any content that was generated by AI that is incorporated in their work—otherwise, a court could disregard a creator’s registration, which could affect the creator’s ability to bring an infringement lawsuit (or its standing), as well as the remedies the creator could obtain.
• Applicants should not identify any AI tool as an author or co-author of a work simply due to the fact that they used an AI tool during the creation process. If the AI-generated content is more than a minor or insignificant part of the work, it should be explicitly excluded from the application by using the “Limitation of Claim” section.
• To make it easier to comply with the Copyright Office’s requirement that applicants identify which work was contributed by the human author and disclaim anything generated by AI, applicants should carefully track and document which content was created by the human author so that that content can be identified on the application and protected.
• If a previously registered work or work pending registration is found to contain AI-generated content that was not disclosed, the registration may be cancelled or denied as applicable. To avoid cancellation or denial of registration, owners of previously registered or pending works containing AI-generated media or materials should contact the USCO’s Public Information Office to update their registration through a supplemental registration process. The Public Information Office can be reached via the Office’s website (https://copyright.gov/help/) or by phone at (202) 707-3000 or (877) 476-0778.

The Fenwick Team can help creators navigate whether to make any specific disclaimers or general statements about AI-generated content, formulate their IP protection strategy and assist in updating previously registered works.