Artificial intelligence (AI) is rapidly transforming various industries, including photography. The Copyright Office has issued a new policy statement that clarifies its practices for examining and registering works that contain material generated by artificial intelligence technology. This policy has far-reaching effects for the photographic industry that must be considered when using AI tools. The Copyright Office concluded that a graphic novel comprised of human-authored text combined with images generated by AI service, Midjourney, is a copyrightable work. However, the individual images themselves cannot be protected by copyright. This ruling represents a noteworthy development at the intersection of AI and copyright law. The following information aims to clarify this new development and contextualize the historical viewpoint of the Copyright Office.
According to the Copyright Office, the term "author" used in the Constitution and the Copyright Act refers only to humans, which therefore excludes non-humans. This is because the Copyright Act makes references to human terms such as "children," "grandchildren," "widow," and "widower," which do not include animals. The 1984 edition of the Compendium of Copyright Office Practices explained that for a work to be copyrightable, it must originate from a human being, as the term "authorship" implies human creation. The current edition of the Compendium confirms that a work must be created by a human being to qualify as a work of "authorship." The Copyright Office will not register works produced by a machine or mechanical process that operates randomly or automatically without any creative input or intervention from a human author. All this to say, the Copyright Office takes the position that for works containing AI-generated material, consideration will be given to whether the AI contributions result from "mechanical reproduction" or the author's "own original mental conception." This evaluation will be performed on a case-by-case basis.
The Copyright Office will not register works that are created solely by technology after receiving a prompt, such as visual, musical, or written works. This means that if the "traditional elements of authorship" are determined and executed entirely by technology without human input, the work will not qualify for copyright protection.
However, in some cases, a work that includes AI-generated material may still qualify for copyright protection if it contains enough human authorship. For example, a human may select or arrange AI-generated material in a sufficiently creative way that it constitutes an original work of authorship. Alternatively, an artist may modify material originally generated by AI technology to the point where the modifications meet the standard for copyright protection. In these cases, copyright protection will only apply to the “human-authored aspects of the work.” These human-authored aspects will be reviewed independently of the AI-generated material itself and will not affect its copyright status.
The Copyright Office clarifies that its policy is not intended to ban the use of technological tools in the creative process. Authors have always used such tools to transform their creative work. For instance, even if a visual artist uses Adobe Photoshop to modify an image, they remain its author. What matters is how much creative control the human author had over the work's expression and how much they controlled the traditional elements of authorship.
When registering your work, you should use the Standard Application and identify the author(s). In the "Author Created" field, provide a brief statement that describes the authorship contributed by a human. Do not list AI technology or the company that provided it as an author or co-author, as they were only used in the creation of the work. Here's an example of how you could describe your human-authored work: Selection, coordination, and arrangement of [describe human-authored content] created by the author and [describe AI content] generated by artificial intelligence.
To stay up to date on all the latest copyright news and resources for photographers, visit PPA's Copyright Advocacy webpage. PPA advocates for photographers by pushing legislators to serve and protect their rights, while providing tools to avoid exploitation. Join us in navigating the intersection of AI and copyright law in this technology-driven world. If you have any questions or concerns about this statement of policy please contact Luc Boulet, Government Affairs Manager at firstname.lastname@example.org.