Potential Implications of US Copyright Office Determination on AI-Generated Work

Matthew F. Ferraro, a senior fellow at the National Security Institute at George Mason University, is a Counsel at WilmerHale; Natalie Li is a Senior Associate, and Ariel Soiffer and Louis W. Tompros are Partners at WilmerHale. Shutterstock In the past several weeks, the U.S. Copyright Office issued both a copyright decision and a policy statement establishing important guidelines for how copyright applies to works created through the application of artificial intelligence (AI).  First, in its February 2023 decision regarding a graphic novel comprised in part of images generated by the AI art platform Midjourney, the Copyright Office reiterated the well-established standard that only works created by a human author, with at least a minimal degree of creativity, are protectable by copyright. In that case, the Copyright Office concluded that images that had been created solely by Midjourney in response to textual prompts entered by a human were not protected by copyright.  Second, in a March 2023 formal policy statement, the Copyright Office wrote that AI-generated work may be protected by copyright if a human is sufficiently involved in the creative process. Sufficient human involvement may include selecting or arranging AI-generated material in a creative way or modifying material after it is created by AI.  Taken together, the ruling and the guidance underscore the importance of human-involved creation in AI-generated work for the work to be able to enjoy copyright protection. The Copyright Office left the door open to revisiting its guidance as this cutting-edge technology develops further. 1. Zarya…Potential Implications of US Copyright Office Determination on AI-Generated Work