Things are moving fast in the world of AI-generated content. The Copyright Office is doing its best to keep up. Even though is it part of the U.S. federal government bureaucracy, it is a more nimble institution than the federal judicial system or Congress. Simply put, the Copyright Office can change its policies and procedures faster than a court or Congress can act. And it has.
TL;DR: The Copyright Office’s Current Position on AI-generated Content.
If you use AI technology to create work, you can claim copyright protection for your contribution to that work. Your contribution to the work must be appreciable. If your contribution is de minimis, the work is not protectible.
Conversely, if the contribution to the creative work made by the AI technology is de minimis, the Copyright Office is not interested in even knowing about it. But if the contribution by AI to the work is appreciable, then that part of the work is excluded from copyright protection.
In copyright law, "de minimis" is a Latin expression meaning "about small things." This concept typically arises in situations where the amount of copyrighted material used is so small or insignificant that it does not constitute a copyright infringement. In the context of AI-generated content, de minimis means, essentially, so little as to be not worthy of notice.
de minimis is one of those fuzzy, legal no-bright-line concepts. Think of it as a spectrum with no AI-generated content in the work on one end of the spectrum and the entire work is created by AI on the other end with de minimis and appreciable sliding around in the middle. Where de minimis ends, appreciable begins.
Copyright Office Cancels, then Reissues, Registration for AI-generated Comic Book
You may recall that in September 2022, Kristina Kashtanova, a graphic novelist, applied for copyright registration for her comic book Zarya of the Dawn. In her application, she listed herself as the author. The Copyright Office registered the work.
Zarya of the Dawn was the first known instance of AI-generated work being registered and it garnered a lot of publicity on social media and in the press. The problem was that the Copyright Office did not know that the work was AI-generated. Kashtanova had not disclosed the use of artificial intelligence in her application.
When the Copyright Office learned that Kashtanova had used the AI image generator Midjourney to create the images in her comic book, Kastanova was told that the registration would be canceled unless she provided additional information. Which she did.
Kashtanova explained that she wrote the text, that she prompted Midjourney in order to generate the images, that she edited some of the images in photoshop, and that she decided which images to include in her work, how the images were to be arranged, and in what order.
Ultimately, the original registration was canceled “for failure to exclude non-human authorship.” After receiving Kastanova’s explanation, a new registration was issued (with a retroactive date) and the basis for the copyright protection was changed to “text; selection, coordination, and arrangement of text created by the author and artwork generated by artificial intelligence.”
The AI image generator’s contribution to the creation of the images was considered to be appreciable by the Copyright Office and Kastanova’s contribution to the creation of the images was de minimis. Therefore, the images themselves are not protected by copyright, but her selection, coordination, and arrangement of those images in her comic book is protected by copyright because it is the product of her creative choices.
Human Authorship Requirement for Copyright Protection
Copyright protects “an original work of authorship fixed in any tangible medium of expression.” Works of authorship are limited to the creations of human authors. The term “author,” which is used in both the Constitution and the Copyright Act, excludes non-humans. The courts are consistent on this point.
The case law goes back to 1884 in Burrow-Giles Lithographic Co. v. Sarony, in which the Supreme Court extended copyright protection to photography. More recently, in 1997, the Ninth Circuit held that a book containing words “‘authored’ by non-human spiritual beings” is only protected by copyright to the extent there is “human selection and arrangement of the revelations.”
The policy of the Copyright Office reflects these decisions. If there is no creative contribution from a human, a work cannot be registered. The human contribution to a creative work is protectible and registrable, the non-human contribution is not.
Which leads to the question of how to fill out the copyright application form when AI technology is used in the creation of the work.
How to Complete the Copyright Application when Using AI-generated Content
There are eleven sections, or screens, in the Standard Application in the online registration portal at copyright.gov. Information about AI-generated content needs to be identified in only two of those screens: the Author screen and the Limitation screen.
The Author Screen
After you identify the author (who has to be a human), the application asks you to describe the authorship that was created by the author. If the author used AI-generated text and incorporated it into a larger textual work, “Text” is properly selected. If the author created the artwork, but used AI to write the text, “Artwork” is properly selected.
If the author contributed an appreciable amount of the text and the images, both can be checked.
If the author arranges the human and non-human content in a work, then in the “Other” field, the Copyright Offices advises use of the following language: “Selection, coordination, and arrangement of [describe human-authored content, i.e. text or artwork] created by the author and [describe AI content] generated by Artificial Intelligence.”
You do not need to go into any more detail on the Author screen. There’s no need to identify the AI technology that was used.
The Limitation Screen
The Limitation screen is where you exclude all AI-generated content from your application. When you exclude something, that means you are not claiming copyright ownership or protection for it. Work in the public domain has to be excluded, as does previously registered work.
Excluding content is easy to do. Remember that if the AI-generated content is de minimis, you do not have to mention your use of AI at all.
If you have incorporated text and/or images into your larger work, the Limitation of Claim screen is where you tell the Copyright Office about it. Simply provide a brief description of the AI-generated content, like “some images were generated by artificial intelligence” or “some text was generated by artificial intelligence.”
You do not need to specify which text or images were created by AI, only that there is AI-generated content in the work.
Remember to add a checkmark for the material you created, that you want protected.
Example of a de minimis contribution to a work
Because the acceptance of AI-generated content in a work registered with the Copyright Office is new, there are few concrete examples of what would constitute a de minimus contribution. In the Zarya of the Dawn application, the Copyright Office rejected the argument that Kashtanova's editing of the image created by Midjourney was sufficiently creative for copyright protection.
Kashtanova argued that she made changes to Zarya's mouth, particularly the upper lip. The Copyright Office determined that the changes were "too minor and imperceptible to supply the necessary creativity for copyright protection."
Short phrases and brief quotes have always been considered de minimis by the Copyright Office with no need to exclude them in the registration process. It strikes me that the kind of uses that can be made of AI tools that would be de minimis and not worthy of mentioning would included the use of AI to generate ideas that the writer or artist uses to create their own expression. After all, that is what copyright protects -- the expression, not the idea. AI assistance to help outline a book, to suggest character traits, to list elements when building a world, to structure a visual composition -- these would most likely be considered de minimis with no need to mention the role of AI in the copyright application.
What I particularly like about the approach the Copyright Office has chosen is that it takes existing law and applies it to the new AI tools. The registration system does not need to be overhauled; a new application form is not needed. The framework that is already in place can be used to protect the work of creatives from a registration perspective. We can all move forward, use the tools, and continue to protect our creativity.
But the fact that work created with AI assistance can be registered does not ease the burden of proving the extent of human authorship versus AI-generated authorship when it comes to an infringement action. If someone infringes work that you created with the help of AI, you will need to show that it is an infringement of your contribution to the work, not the AI machine’s contribution to the work.
The creative choices made by a human to produce a work are protectible by copyright. In order to prevail in an infringement action, you will need to explain what your creative choices were and how and when in the process you made them that resulted in the final work.
The more thought you put into crafting, designing, refining, and directing your prompts and the more you reject, edit, revise, rewrite, or change the output from the AI content generator, the more likely you will be viewed by a court to have created a protectible work. You need to think about the coming challenge of sorting out the difference between de minimis and appreciable AI-generated content as you create your work.