Copyright law doesn’t cover AI art, US Copyright Office’s new decision shows

The US Copyright Office has ruled that copyright laws do not protect art generated by AI under new decisions made around the use of AI in the arts industry.

This comes as there have been debates on the role of AI in the sector and how it should go. The US Copyright Office has concluded that unedited work created by AI is not eligible for federal protection.

US Copyright Office maintains that no human touch, no protection

According to a Mashable report, this decision comes as part of AI initiatives that were created to answer the many legal questions that have arisen in the market following the boom in the AI sector. These concerns include questions around whether the constitution’s Copyright Clause permits protection for AI-generated material.

“The outputs of generative AI can be protected by copyright only where a human author has determined sufficient expressive elements.”

US Copyright Office.

“This can include situations where a human-authored work is perceptible in an AI output, or a human makes creative arrangements or modifications of the output, but not the mere provision of prompts,” added the office in the report’s second installment that was issued on Jan. 29.

According to the regulations, artwork that includes AI generative material remains eligible for copyright protection because they retain “the centrality of human creativity,” as opposed to totally replacing human creators with AI.

“Extending protection to material whose expressive elements are determined by a machine, however, would undermine rather than further the constitutional goals of copyright,” explained Shira Perlmutter, register of copyrights and director of the US Copyright Office.

AI-generated images and videos cannot be copyrighted

According to the US Copyright Office’s explanations, this follows that pictures and videos created by AI tools like Midjourney or OpenAI’s DALL-E 3 cannot be copyrighted by their generators. Even if the individual generator writes acres of complex and original prompts to create that content, the Copyright Office’s position remains.

It therefore follows that prompts alone are not up for copyright either, according to the regulation, and neither are successive iterations on such content.

According to the report, the office has further laid out some guidelines for the “level” of human creators involvement in creating AI art using technologies, including the use of computer-generated images in making film.

The US Copyright Office’s decision was also inspired by the fact that generative AI output is not predictable and can also produce different results with the same and similar prompts.

“Although entering prompts into a generative AI system can be seen as similar to providing instructions to an artist commissioned to create a work, there are key differences,” reads part of the report.

“In a human-to-human collaboration, the hiring party is able to oversee, direct, and understand the contributions of a commissioned human artist,” further explains the report.

The US Copyright Office also indicated that the gaps that exist between prompts and the resulting outputs show that the user does not have total control over the conversation of their ideas into fixed expression.

Another part of the report which is expected to be released later this year will interrogate issues around the role of copyright in training AI models, a subject that has been topical lately. Individuals and publishers have sued AI companies for copyright infringement.

Meta is in a legal battle with authors who sued the social network firm for using their material without their permission. In 2023, a group of authors took Meta to court on allegations that the firm was misusing their books to train AI models, specifically Llama, its large language model that powers its chatbots.

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