The U.S. Copyright Office’s Position on the Copyrightability of Works Made with the Assistance of Generative AI (Part One)

Summer Associate Ben Gitzinger also contributed to this article.

Since the release and popularization of platforms such as Midjourney and DALL-E, the past few years have seen a staggering proliferation of art made using text-to-image models—familiarly known as “AI art.” Tens of millions of images are created daily using generative AI, and, as time continues, it is becoming more and more difficult to distinguish between AI-generated art and human-created works. The vast change in the source and content of publicly available art poses a steep challenge to Intellectual Property Law regimes globally. Mindful of this threat, the Copyright Office issued “Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence” (“Guidance”) in March 2023 to clarify its practices for examining and registering works that contain AI-generated content.

Despite being issued only last year, the Guidance reflects centuries’ worth of thoughtful policy considerations concerning the question that underlies the copyrightability of AI-generated works: What level of human involvement and contribution is necessary before a work can be considered copyrightable?

1. The Foundations of U.S. Copyright Law’s Human Authorship Requirement

Congress and the Human Authorship Requirement

U.S. Copyright Law has historically acknowledged that human creativity is central to the goals of copyright protection. Tracing its origins back to the Constitution,¹ the framers contemplated that the promise of an exclusive grant of rights to intellectual property would incentivize individuals to create more artistic works for public consumption. The copyright system’s apparent accommodation of human beings’ self-interested nature suggests that the envisioned bargain cannot function properly without human artists.

The Copyright Act of 1909 even explicitly stated that only a “person” could “secure copyright for his work.”² Notably, Congress appears to have indicated they intended to adopt this understanding of authorship “without change” when they enacted the current 1976 Copyright Act.³ Since the nation’s founding, courts have consistently affirmed this principle by requiring conscious human expression before finding copyright protection is warranted.

Courts and the Human Authorship Requirement

In 1884, the Supreme Court in Burrow-Giles Lithographic Co. v. Sarony considered whether the Copyright Act could extend protection to photographs, even though such works were not expressly listed as a work of authorship in the Act. The Court held that the photograph Oscar Wilde, No. 18 could be protected by copyright. According to the Court, a photograph that “is the mere mechanical reproduction of the physical features or outlines of some object…and involves no originality of thought” is not copyrightable.⁴ However, Oscar Wilde, No. 18 was distinguishable because its creator had posed the subject, arranged the setting and props visible, and selected the lighting before taking the picture. The Court viewed these undertakings as demonstrating that the (human) creator “made the [photo] from his own original mental conception,” and thus dispositive of the photo’s copyrightability as “the product of [the photographer’s] intellectual invention.”⁵

A century later, the Ninth Circuit in Urantia Foundation v. Maaherra considered whether the Urantia Book—a compilation of divine revelations—could receive copyright protection. The court agreed with the defendant that “it is not the creations of divine beings that the copyright laws were intended to protect, and that . . . some element of human creativity must have occurred in order for the Book to be copyrightable.”⁶ The court cited Burrow-Giles Lithographic, and, because the Book’s divine revelations were compiled, selected, coordinated, and arranged by human beings, held that “the human selection and arrangement of the revelations . . . [satisfy] the ‘extremely low’ threshold level of creativity required for copyright protection.”⁷

In contrast, lower courts have repeatedly refused to offer protection to works solely attributed to non-human beings. In Naruto v. Slater, a Ninth Circuit district court found that a selfie taken by a monkey could not receive copyright protection in part because the “Copyright Act does not ‘plainly’ extend the concept of authorship or statutory standing to animals” and “[t]he Supreme Court and Ninth Circuit have repeatedly referred to ‘persons’ or ‘human beings’ when analyzing authorship under the Act.”⁸ Similarly, in another Ninth Circuit district court case, the court found that a book containing divine revelations that were attributed to “a spirit” could not be copyrighted.⁹ Lastly, in Kelley v. Chicago Park District, the Seventh Circuit found that Wildflower Works, a garden “designed and planted by an artist,” could not receive copyright protection because the garden “owes most of its form and appearance to the natural forces.”¹⁰

The U.S. Copyright Office and the Human Authorship Requirement

Compelled to follow the courts, the U.S. Copyright Office published the first edition of the Compendium of U.S. Copyright Office Practices (Compendium I) in 1967, which acknowledged the requirement of human authorship for copyrightability. Discussing specifically the copyrightability of certain pictorial or graphic material, Chapter 2.8 of Compendium I states that “[s]ince the specific outlines and contours of the patterns and shapes formed by the liquid petroleum do not owe their origin to a human agent, it is not possible to claim copyright in such patterns and shapes.”¹¹ The second edition of the Compendium (Compendium II), which was first published in 1984, followed suit, providing that “[t]he term ‘authorship’ implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable.”¹² The current edition of the Compendium, first released in 2014, maintains this requirement and provides examples of when a work does and does not satisfy the human authorship requirement. However, no past or current edition of the Compendium explicitly contemplates how the Copyright Office is to examine works containing AI-generated content.

2. The US Copyright Office’s and The US Copyright Office Review Board’s Application of the Human Authorship Requirement to Works Including AI-Generated Content (Before Issuance of the Guidance)

In February 2022, the Copyright Office Review Board (“Board”) issued what appears to be its first publicly available decision on a work containing AI-generated content. The decision concerns a pictorial work, pictured below, titled “A Recent Entrance to Paradise.”

Steven Thaler, the owner of the work, attempted to register the work with the Copyright Office. He filed a copyright application that identified the author of the work as the “Creativity Machine,” a computer algorithm owned by Thaler. The Copyright Office refused to register the work, and the Copyright Office Review Board affirmed the refusal because there was no “nexus between the human mind and creative expression” that is the “prerequisite of copyright protection.”¹³ The District Court of D.C. affirmed the Copyright Office’s refusal, and the case is currently on appeal before the D.C. Circuit.¹⁴

The following year, the Copyright Office canceled Kristina Kashtanova’s copyright registration for a graphic novel “Zarya of the Dawn” after learning that the AI-generative platform Midjourney had been used to generate all of the images. A reproduction of the cover page is provided below.

However, because Kashtanova had written all of the novel’s text and compiled and coordinated the text with the AI-generated images in a sufficiently creative way, the Copyright Office reissued a registration for the novel; the registration limited copyright protection to Kashtanova’s written contributions and expressive arrangement of text and images. According to the Office, the images were not eligible for copyright because Kashtanova’s iterative process of feeding Midjourney various prompts to reach the final desired images did not amount to curation. Unlike the photograph of Oscar Wilde in Burrow-Giles, “Midjourney’s specific output cannot be predicted by users.”¹⁵ However, the Board noted that “to the extent that Ms. Kashtanova made substantive edits to an intermediate image generated by Midjourney, those edits could provide human authorship.”¹⁶

[1] Congress has the authority to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” U.S. Const. art. 1, § 8, c. 8.

[2] Copyright Act of 1909, ch. 320, § 9, 35 Stat. 1075, 1077 (1909) (repealed 1976).

[3] H.R. Rep. No. 94-1476, 51 (1976).

[4] Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 59 (1884).

[5] Id. at 60.

[6] Urantia Found. Maaherra, 114 F.3d 955, 958 (9th Cir. 1997).

[7] Id. at 959.

[8] Naruto v. Slater, No. 15-cv-04324-WHO, 2016 WL 362231, at *3 (N.D. Cal. Jan. 28, 2016), aff’d, 888 F.3d 418 (9th Cir. 2018).

[9] Oliver v. Saint Germain Foundation, 41 F.Supp. 296 (S.D. Cal. 1941).

[10] Kelley v. Chicago Park Dist., 635 F.3d 290, 304 (7th Cir. 2011).

[11] U.S. Copyright Off.,  Compendium of Copyright Office Practices, First Edition, 2.8.3.I.a.1.(b) (rev. 1973) https://copyright.gov/history/comp/compendium-one.pdf

[12] U.S. Copyright Off.,  Compendium of Copyright Office Practices, Second Edition, 202.02(b) (1984) https://www.copyright.gov/history/comp/compendium-two.pdf

[13] Second Request for Reconsideration for Refusal to Register A Recent Entrance to Paradise (Correspondence ID 1-3ZPC6C3; SR #1-7100387071), at 4 (U.S. Copyright Off. Rev. Bd. Feb. 14, 2022) (refusal affirmed), https://www.copyright.gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf.

[14] Thaler v. Perlmutter, 687 F.Supp.3d 140 (D.D.C. 2023).

[15] Zarya of the Dawn (Registration # VAu001480196), at 9 (U.S. Copyright Off. Rev. Bd. Feb. 21, 2023), https://www.copyright.gov/docs/zarya-of-the-dawn.pdf

[16] Id. at 12.