The U.S. Copyright Office is offering new guidance and policy considerations for the registration of artistic, musical, literary and other works created with the assistance of artificial intelligence ("AI") technology. On March 16, 2023, the Register of Copyrights and Director of the U.S. Copyright Office published a policy statement providing insight into its new internal practices for examining and registering works containing AI-generated material, while reiterating the Office's long-standing registrability requirement of human authorship. The Office explained that the registrability of AI-assisted works will be determined by making a case-by-case inquiry into whether contributions made by AI are the result of "mechanical reproduction," or are instead the product of a human author's own original mental conception that is implemented using AI technology. The Office's full policy statement can be viewed here.

The guidance follows the Office's recent ruling granting a limited copyright registration to an AI-assisted graphic novel in which the individual images within the novel were created using AI. The Office determined that while the combination of the human-authored text with the AI-generated images was considered a creative, protectable expression, the individual images were not protectable on their own.

While the Office's new policy provides guidance on how to complete copyright applications for AI-assisted works, the lack of bright-line rules for what's protectable and what isn't leaves unanswered questions among both creators and the legal community. For example, there is not yet a required human input 'level', e.g., a percentage or other measurement, to define what will allow an AI-assisted work to cross the registrability threshold. Additionally, rules as to which specific parts of AI-generated works are registrable - i.e., whether the source code behind the prompt itself is registrable - have not yet been determined. Until AI-specific rules are created, the Office will use its existing registrability criteria to review and consider copyright applications for AI-generated works.

The Office has announced that it will be holding a series of 'listening sessions' to solicit public input and feedback over the next few months as AI technology and the corresponding law develop.

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