The Highlights
- Copyright Protection Only for Human Authorship: According to the U.S. Copyright Office, only the human-authored elements of works incorporating AI-generated material are eligible for copyright protection, requiring applicants to differentiate between human and AI contributions.
- Disclosure Requirement of AI-Generated Material: The U.S. Copyright Office mandates that applicants disclose the inclusion of an appreciable amount of AI-generated material in works submitted for registration; this disclosure requirement is retroactive for existing registrations.
- Consequences of Non-Compliance: Failing to disclaim AI-generated content in copyright applications can lead to the U.S. Copyright Office cancelling the registration or third-party legal challenges regarding the validity of the registration.
Generative artificial intelligence (AI) has exploded in popularity and gives users of all artistic levels the ability to create new content. With the increased use of AI, the U.S. Copyright Office has seen a growth in applications seeking to register works incorporating AI-generated material. The Copyright Office's recent guidance on registering these types of works includes a new disclosure requirement, which adds complexity to the application process because failure to disclose the inclusion of AI-generated material risks cancellation of the registration.
To help guide copyright applicants and illustrate the importance of truthful statements in copyright applications, this article discusses the Copyright Office's general application review process, why multiple incentives exist for applicants to be truthful in their applications, the Copyright Office's general guidance relating to works containing AI-generated material, and the consequences of failing to disclaim AI-generated material in works being registered.
Copyright Office's General Review Process for Applications
The U.S. Copyright Office administers the U.S. copyright registration system. When reviewing copyright applications, the Copyright Office generally accepts facts stated in applications as true "unless they are implausible or conflict with information in the registration materials, the Office's records, or other sources of information that are known by the Office or the general public."1 Although the Copyright Office does not generally conduct its own factual investigations to confirm the veracity of statements made in applications, it "may take administrative notice of facts or matters that are known by the Office or the general public, and may use that knowledge to question an application that appears to contain or be based upon inaccurate or erroneous information." 2
In applications and other materials submitted to the Copyright Office, applicants (and their authorized agents) have an obligation to certify that the information in applications is correct to the best of their knowledge.3 If mistakes are accidentally made, authors and copyright owners have an avenue of redress: They may file supplementary registrations anytime after a registration has issued "to correct an error in a copyright registration or to amplify the information given in a registration."4 For example, the Copyright Office permits supplementary registration to correct information regarding the author or claimant and the scope of a copyright claim.5
Incentives to Be Truthful in Copyright Applications
Practically, it is in the interests of an applicant to be truthful. As an initial matter, the Copyright Office has the authority after registration to cancel a registration sua sponte.6 The Copyright Office could learn that a work is not copyrightable, either because the authorship is insufficiently creative or the work does not contain authorship subject to copyright, and order its cancellation.7 In the context of litigation, a court may elect not to enforce a party's copyright due to lack of truthfulness in a copyright application.8 Also, a litigation party can challenge the validity of a copyright registration9 and specifically seek referral to the Copyright Office under 17 U.S.C. § 411(b). While the Copyright Office "does not invite, and generally will not entertain, requests to cancel a registration by any party other than the claimant named in the certificate of registration,"10 if a party alleges that a certificate of registration issued by the Copyright Office contains inaccurate information that was knowingly included in the application, then "the court shall request the Register of Copyrights to advise the court whether the inaccurate information, if known, would have caused the Register of Copyrights to refuse registration."11 Finally, knowingly making false representations of material fact in a copyright application or in written statements filed with the application is a punishable crime.12
Human Authorship and AI-Generated Material
In March 2023, the Copyright Office issued guidance regarding the registration of works incorporating AI-generated material, reiterating its long-standing view that "copyright can protect only material that is the product of human creativity," and that the term "author" in the Copyright Act "excludes non-humans."13 It also referenced that courts have similarly interpreted the text of the Copyright Act. For example, the Copyright Office noted that the U.S. Court of Appeals for the Ninth Circuit has held that a book containing words "authored by non-human spiritual beings" can only qualify for copyright protection if there is "human selection and arrangement of the revelations."14 Similarly, the Copyright Office referenced a case holding that a monkey cannot register a copyright in photos it captures with a camera because the Copyright Act refers to an author's "children," "widow," "grandchildren," and "widower"—terms that "all imply humanity and necessarily exclude animals."15
In the context of AI, according to the Copyright Office, copyright protection requires human authorship, so "[i]f a work's traditional elements of authorship were produced by a machine, the work lacks human authorship and the Office will not register it."16 For example, "when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the 'traditional elements of authorship' are determined and executed by the technology—not the human user."17 The Copyright Office acknowledged, however, that works incorporating AI-generated material may, in some cases, "contain sufficient human authorship to support a copyright claim."18 For example, "a human may select or arrange AI-generated material in a sufficiently creative way," or "an artist may modify material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection."19
Importantly, for purposes of registration, if a work contains an appreciable amount of AI-generated material, such material "must be disclaimed in a registration application."20 In other words, so that the Copyright Office may evaluate whether sufficient human authorship exists in a work, "applicants have a duty to disclose the inclusion of AI-generated content in a work submitted for registration and to provide a brief explanation of the human author's contributions to the work."21 Significantly, this disclosure requirement is retroactive for existing registrations. The Copyright Office cautions that "[a]pplicants who have already submitted applications for works containing AI-generated material should check that the information provided to the Office adequately disclosed that material," and "take [any necessary] steps to correct their information so that the registration remains effective."22
Consequences of Failing to Disclaim AI-Generated Material in Works Being Registered
Should an applicant fail to disclose the inclusion of AI-generated material when seeking to register a work, the Copyright Office warns that such applicants "risk losing the benefits of the registration."23 Specifically, if the Copyright Office becomes aware that an applicant omitted or provided questionable information relating to use of AI in the work's creation, it "may take steps to cancel the registration."24
Indeed, this has already happened. In February 2023, the Copyright Office became aware, through social media, that an applicant had utilized generative AI to create the images in a registered comic book, but she had not disclaimed the AI-generated images in her application.25 The Copyright Office informed the applicant that her registration would be canceled unless she could provide information showing why her registration should be upheld.26 After the applicant explained how the comic book had been created, the Copyright Office determined that copyright protection could extend to the portions of the book that the applicant had authored herself: the text of the book, as well as the selection, coordination, and arrangement of the book's written and visual elements.27 By contrast, because the images in the book had been generated through AI, the Copyright Office concluded that they were not protectable because they were not the product of human authorship.28 Accordingly, it canceled the original registration certificate and issued a new one "covering only the expressive material that she created."29
While the above example illustrates that failure to comply with the AI-disclaimer requirement renders a registration vulnerable to cancellation by the Copyright Office sua sponte, in the context of litigation, not complying with this requirement could arguably provide an avenue for an adverse party to challenge the validity of the copyright registration for a lack of human authorship.
Takeaways
While AI technology continues to evolve and become more widespread, the obligation of applicants to be truthful in their statements to the Copyright Office remains. Such an obligation now requires disclosure of AI-generated material in a work being registered. Failure to do so risks both cancellation of the registration by the Copyright Office and challenges from adverse parties in court.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Footnotes
1. U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 309.2 (3d ed. 2021) [hereinafter Compendium (Third)].
2. Id. §§ 309.2, 602.4(C).
3. 37 C.F.R. § 202.3(c)(3).
4. 17 U.S.C. § 408(d).
5. Compendium (Third), supranote 1, §§ 1802.6, 1802.6(J); 17 U.S.C. § 408(d); 37 C.F.R. § 202.6(f)(2).
6. 37 C.F.R. § 201.7(c)(1).
7. See id.
8. See,e.g., GB Mktg. USA Inc. v. Gerolsteiner Brunnen GmbH & Co., 782 F. Supp. 763, 776 (W.D.N.Y. 1991) (declining to enforce copyright because plaintiff did not explain its failure to disclose the derivative nature of its applied-for work in the copyright application); Russ Berrie & Co. v. Jerry Elsner Co., 482 F. Supp. 980, 987–88 (S.D.N.Y. 1980) (similar).
9. See,e.g., Digi Fama LLC v. SnapNHD, LLC, No. 2:20-cv-11792, 2021 U.S. Dist. LEXIS 258892, at *13–18 (C.D. Cal. Sep. 15, 2021) (denying defendant's motion to dismiss claim seeking a declaration of copyright invalidity because plaintiff had sufficiently alleged that defendant's work was not copyrightable due to lack of originality); MMS Trading Co. Pty Ltd. v. Hutton Toys, LLC, No. 1:20-cv-01360, 2021 U.S. Dist. LEXIS 60376, at *18–19 (E.D.N.Y. Mar. 29, 2021) (similar).
10. Compendium (Third), supra note 1, § 1807.4(E).
11. 17 U.S.C. § 411(b). The applicant must have "actual, subjective" knowledge that it provided inaccurate information in its registration application. Unicolors v. H&M Hennes & Mauritz, L.P., 595 U.S. 178, 185–86 (2022).
12. 17 U.S.C. § 506(e) ("Any person who knowingly makes a false representation of a material fact in the application for copyright registration provided by section 409, or in any written statement filed in connection with the application, shall be fined not more than $2,500.").
13. Copyright Registration Guidance: Works Containing Mate- rial Generated by Artificial Intelligence, 88 Fed. Reg. 16190, 16191 (Mar. 16, 2023); see Compendium (Third), supra note 1, § 313.2.
14. 88 Fed. Reg. at 16191–92 (quoting Urantia Found. v. Maaherra, 114 F.3d 955, 957–59 (9th Cir. 1997)).
15. Id.at 16192 (quoting Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018)).
16. Id.
17. Id. (footnote omitted).
18. Id.
19. Id. at 16192–93.
20. Id. at 16192.
21. Id. at 16193.
22. Id.
23. Id.
24. Id.
25. Zarya of the Dawn, Registration No. VAu001480196, at 2 (U.S. Copyright Off. Feb. 21, 2023), https://www.copyright.gov/docs/zarya-of-the-dawn.pdf.
26. Id.
27. Id. at 1.
28. Id. at 8.
29. Id. at 1, 9.
Originally published by Landslide.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
