IP Tech Knowledgy

As the use of generative artificial intelligence (AI) becomes increasingly prevalent, creators of copyrightable works should understand how utilizing AI to help produce the material can impact whether and how the resulting work could gain federal copyright registration. The benefits of registering an original work of authorship with the United States Copyright Office are significant for  fighting infringers. Registration is required to file a lawsuit against an infringer and enhances the monetary damages that a rights-holder can recover if the work was registered before the infringement began, or within three months of the work’s first publication.

Only works with “human authorship” are entitled to copyright registration, and the Copyright Office evaluates an application on a case-by-case basis. For example, if a creator merely enters a prompt into an AI assistant, the response generated is not eligible for copyright registration because the creator is not deemed to have exercised creative control over the generated material. However, if the human then modifies and/or rearranges the material in any creative way, that “author” would likely be eligible for registration, at least in part.

For a work that is created partially by AI, as in the example above, there is no exacting rule for eligibility for registration. A creator must specify in the copyright application if the work contains  more than a de minimus amount of AI-generated material. AI-generated material must be disclaimed from the registration, meaning the registration does not include protection for the AI-generated content. An applicant has two options to inform the Copyright Office that an application contains AI-generated content. An applicant may include a brief description of the content -- which can be included in the “Limitation of Claim” section of the application and in the “Note to CO” field. Alternatively, if the applicant is unsure how to fill out the application,  a general statement can be included in the application indicating that the work includes AI-generated material, in which case, the Copyright Office will contact the applicant for additional information and then determine the registrability of the application and its content. In some cases, the Copyright Office may determine that nothing must be disclaimed.

Failure to disclose AI-generated material can result in the cancellation of a registration and, in some instances, a court may disregard the registration in an infringement action. The obligation to disclose AI content also applies to pending applications and existing registrations that have already been granted. The Owner of an application or registration is obligated to report to the Copyright Office if the work has been modified to include AI-generated material.  If the application is still pending, the applicant can contact the Copyright Office’s Public Information Office. If a registration has been issued, the registrant should submit a supplementary registration. The Copyright Office Statement of Policy provides more detailed information.

While a powerful tool, generative AI can impact a creator’s ability to obtain a copyright registration for the work, which can, therefore, affect the creator’s ability to fight infringers.  When using generative AI, a creator should be mindful of these considerations.  

Jennifer R. Mumm
410-576-4180 • jmumm@gfrlaw.com