Blog

By Purple Fox Legal

April 28, 2023

The use of artificial intelligence (AI) has become increasingly widespread in recent years, with individuals and businesses of all sizes harnessing its power to innovate and stay competitive. While AI offers many benefits, it also poses significant challenges for copyright law. 

Copyright is a fundamental aspect of intellectual property law that protects original creative works, including literary, artistic, and musical works. Obtaining a copyright can be a significant development for a business or author as once you register your work with the U.S. Copyright Office, that copyright will be protected by law for up to 70 years after your death. 

However, the legal framework that defines what is copyrightable was established before the advent of AI, raising questions about how AI-generated works fit into this framework. 

Basics of Copyright Law

It is important to understand the basics of copyright law. Copyright is a form of legal protection granted to the creators of original works of authorship. To qualify for copyright protection, a work must have three elements:

1. Originality: The work was created independently and not copied from another source. 

2. Fixed works: The work must be fixed in a tangible medium of expression, such as paper, canvas, or a digital file. This can be achieved through various means, such as writing or recording the work. 

3. Human authorship: It must be the product of an individual’s creativity and cannot be the result of purely mechanical or technical processes. Examples of copyrightable works include books, photographs, paintings, songs, and movies.

The requirements for originality and human authorship are key to the discussion as AI-generated work automatically poses serious threats to both elements. An exception to the usual copyright rules is when one party hires another party to create something. In these cases, the copyright may belong to the hiring party instead of the creator. This is referred to as a “work for hire” or work made for hire.” Check out this blog article to learn more about works for hire!

Challenges of AI-Generated Works

When it comes to copyright protection for content created with the assistance of AI, a wide range of materials are subject to challenges. These include images, written content, audio, and even the prompts users create to instruct the AI tool how to produce output.

While certain components of a work may be original and constitute human authorship, the elements of a project produced from AI are not. The core challenge lies in who is the ultimate producer of AI-generated content. In other words, to what extent was the work created using AI?

U.S. Copyright Office Guidance Regarding AI-Generated Works

The U.S. Copyright Office recently determined that artwork generated by the AI program Midjourney for the comic book “Zarya of the Dawn,” authored by Kristina Kashtanova, is ineligible for copyright protection. While the text and other elements of the publication remain protected, the AI-created illustrations are not copyrightable. 

As digital content creation increasingly relies on AI tools such as ChatGPT and Midjourney, this decision sets a precedent for future cases involving AI-generated works.

In addition, the U.S. Copyright Office initiated a new AI initiative in March to explore copyright law and policy concerns related to AI. This includes examining the extent of copyright protection for AI-generated works and the utilization of copyrighted materials in AI training. Prompted by requests from Congress, the public, creators, and AI users, the Office is issuing new registration guidance to address copyrightability and registration challenges involving AI-generated content. This guidance emphasizes the duty of applicants to disclose AI-generated content in submitted works, providing instructions on disclosure, updating pending applications, and correcting the public record for claims registered without the necessary disclosure.

Copyright protection can only extend to materials resulting from human creativity, thereby excluding AI from being considered as an author. However, guidance from the U.S. Copyright Office clarifies that even though “it is well-established that copyright can protect only material that is the product of human creativity”—and AI, therefore, can’t be considered an author—that “does not mean that technological tools cannot be part of the creative process.” 

Artists may still be eligible for copyright protection if they arrange or select AI-generated materials in a sufficiently creative manner or significantly modify an AI-generated output. 

This guidance, however, raises more questions than it answers as content creators will have a difficult time drawing the line between what level of human involvement with AI-produced content will contribute sufficient contribution for copyrighting purposes.

Outlook for AI Copyright Regulation 

As AI technology continues to advance, there are several challenges on the horizon for copyright law. One of the biggest challenges facing the copyrightability of AI-generated works is the issue of copyright violations and the fair use doctrine. Fair use is a legal doctrine that allows for the limited use of copyrighted material without the owner’s permission for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research. However, determining whether a particular use of AI-generated content qualifies as fair use can be challenging. For example, if an AI tool generates an image that resembles an existing copyrighted work, is it considered a violation of copyright or fair use? 

Another issue that arises with the use of AI in software development is determining who owns the code generated by the AI. For example, if an AI tool generates code that is used in a software application, who owns the rights to that code? Does the developer own the rights, or is it the AI tool’s creator? These questions will need to be addressed to ensure that entrepreneurs are aware of the limitations of legal protection for AI-generated code.

In addition, the U.S. Copyright Office plans to publish a notice of inquiry soliciting public comments later this year on a wide range of copyright issues arising from the use of AI, after it has a chance to convene public listening sessions in the spring to collect insights on prevailing technologies and their effects.

Safeguarding AI Concerns

The copyrightability of AI-generated works is a complex and rapidly evolving area of the law. Small business owners who use AI in their operations must navigate this legal landscape carefully to avoid potential legal disputes and infringement claims. The best way to protect your business’s AI creations is to consult with legal counsel who focuses on intellectual property law.

In addition to legal counsel, it is essential to stay up-to-date on the latest developments in AI and copyright law. As AI technology continues to advance, the legal landscape will undoubtedly evolve, presenting new challenges and opportunities for small businesses. By staying informed and seeking legal guidance, you can ensure that your business is protecting its copyrights and maximizing the benefits of using AI in your operations.

Overall, the copyrightability of AI is a complex issue that small business owners cannot afford to ignore and the legal answers haven’t been fully developed. By working with legal counsel and staying informed, you can protect your business’s copyrights and stay ahead of the curve.