The United States Copyright Office recently produced a statement of policy indicating that some artworks generated using artificial intelligence are now eligible for copyright registration on a case-by-case basis. This should go well!
Effective March 16, the Copyright Office’s statement of policy indicates that copyright applicants are permitted to submit AI-assisted works (across literature and visual arts) for protection under copyright law, and that the works will be evaluated for evidence of “human authorship.” The Office made a comparison between AI art and photography, citing the 1884 Supreme Court decision to extend copyright protections to photographs against the will of the Congress in Burrow-Giles Lithography Co. v. Sarony.
The Supreme Court decided that a photograph is not just a mechanical process, but an authored work based on the photographer’s decisions in curating the backdrop and subject’s clothing.
In the realm of generative works, the Office asks applicants if the included AI elements are the result of “mechanical reproduction” or of an author’s “own original mental conception, to which [the author] gave visible form.” (Walter Benjamin: 💅) To mark the difference, the policy distinguishes between human artists developing AI work strictly through submitting prompts as instructions, and human artists selecting from and reimagining AI generations in a “sufficiently creative way.” However, the policy states that in the latter case, only the “human-authored” elements of the work would be copyrighted independent of the AI contributions.