AI-assisted artistic works may be eligible for copyright in certain cases, according to the US Copyright Office

The US Copyright Office released new guidelines on Wednesday to clarify when artistic works created using artificial intelligence are eligible for copyright.

Building on a decision it issued last month rejecting copyright for images created by the generative AI system Midjourney, the office said copyright protection hinged on whether the AI contributions are “the result of mechanical reproduction”, such as in response to text prompts, or whether they reflect the author’s “own mental design”.

“The answer will depend on the circumstances, in particular how the AI ​​tool works and how it was used to create the final work,” the office said.

The bureau did not comment on the guidelines.

Generative AI systems like Midjourney, ChatGPT and DALL-E, which create text and images in response to human instructions, have recently exploded in popularity. Microsoft-backed OpenAI on Tuesday released GPT-4, an improved version of ChatGPT.

The Copyright Office first weighed in last month on whether its output is copyrightable, finding Midjourney-generated footage in Kris Kashtanova’s comic ‘Zarya of the Dawn’ couldn’t be copyrighted, although Kashtanova’s text and the unique arrangement of the book’s elements may .

The bureau reiterated on Wednesday that copyright protection depends on the amount of human creativity involved and that the most popular AI systems are unlikely to create copyrighted works.

“Based on the Bureau’s understanding of currently available generative AI technologies, users do not exercise ultimate creative control over how these systems interpret prompts and generate material,” the bureau said. “Instead, these prompts work more like instructions to a commissioned artist.”

Creative modifications and arrangements of AI-created work, such as Kashtanova’s comic, may still be copyrightable, and the office said its policy “does not mean that technological tools cannot not be part of the creative process”.

“In each case, what matters is the extent to which the human had creative control over the expression of the work and actually formed the traditional elements of authorship,” the office said.

The office also said copyright applicants must disclose when their work includes AI-created material, and that previously filed applications that do not disclose AI’s role should be corrected.

© Thomson Reuters 2023