Introduction
The Copyright Office (the "Office") is the Federal agency responsible for administering the copyright registration system and providing counsel to Congress, other agencies, and the Federal judiciary on copyright and related matters. With a history dating back to 1870, the Office has acquired extensive experience and expertise in distinguishing between copyrightable and noncopyrightable works. The Office is authorized by the Copyright Act to create the application process for individuals seeking to register their copyrighted works. While the Act outlines certain minimum requirements, the Register holds the authority to request additional information as necessary for evaluating the existence, ownership, or duration of a copyright.
As the Office processes approximately half a million registration applications annually, it has identified emerging trends in registration activity, which may necessitate alterations or expansions in the information required to be disclosed on an application. One such recent development is the emergence of advanced artificial intelligence (AI) technologies, capable of generating expressive material. These "generative AI" technologies are trained on vast quantities of preexisting human-authored works, using inferences from this training to create new content in response to user prompts. The output produced can be textual, visual, or audio, and is determined by the AI based on its design and the material it has been trained on.
The advent of generative AI technologies raises questions about the copyright protection of the material they produce, the eligibility for registration of works comprising both human-authored and AI-generated material, and the information that should be submitted to the Office by applicants seeking to register such works. The Office has already started receiving and reviewing applications claiming copyright in AI-generated material, making these questions far from hypothetical.
For instance, in 2018, the Office received an application for a visual work described as "autonomously created by a computer algorithm running on a machine." The application was denied on the grounds that the work contained no human authorship. A series of administrative appeals led to the Office's Review Board affirming that the work could not be registered due to the absence of any creative contribution from a human actor. More recently, in February 2023, the Office reviewed a graphic novel registration containing human-authored text alongside AI-generated images. The Office concluded that the graphic novel constituted a copyrightable work, while the individual images themselves were not eligible for copyright protection.
The Office has also encountered other applications that have listed AI technology as the author or co-author of a work or have included statements indicating the work was produced by or with AI assistance. Some applicants have not disclosed the inclusion of AI-generated material, but have referenced AI technologies in the work's title or acknowledgments section.
These developments have led the Office to conclude that public guidance is necessary for the registration of works containing AI-generated content. This statement of policy outlines how the Office applies copyright law's human authorship requirement to applications for registering such works and offers guidance to applicants. The Office acknowledges that AI-generated works raise additional copyright issues not addressed in this statement and has initiated an agency-wide effort to explore these issues. As part of this initiative, the Office plans to publish a notice of inquiry later this year, soliciting public input on other legal and policy matters, including the application of copyright law to the use of copyrighted works in AI training and the subsequent treatment of outputs.
The Human Authorship Requirement
The Office maintains that copyright protection is reserved only for material that is the product of human creativity. Both the Constitution and the Copyright Act use the term "author," which inherently excludes non-humans. The Office's registration policies and regulations have been shaped by statutory and judicial guidance on this issue.
In its leading case on authorship, the Supreme Court employed language that excluded non-humans while interpreting Congress's constitutional power to grant “authors” exclusive rights to their “writings.” In Burrow-Giles Lithographic Co. v. Sarony, a defendant accused of making unauthorized copies of a photograph argued that Congress's expansion of copyright protection to photographs was unconstitutional because “a photograph is not a writing nor the production of an author” but is instead created by a camera. The Court disagreed, asserting that the Constitution's Copyright Clause allowed photographs to be subject to copyright, as long as they represent the "original intellectual conceptions of the author." The Court defined an “author” as “he to whom anything owes its origin; originator; maker; one who completes a work of science or literature,” and consistently referred to such “authors” as human beings, describing authors as a class of “persons” and a copyright as “the exclusive right of a man to the production of his own genius or intellect.”
Federal appellate courts have reached similar conclusions when interpreting the text of the Copyright Act, which provides copyright protection only for “works of authorship.” The Ninth Circuit has ruled that a book containing words “authored by non-human spiritual beings” can only qualify for copyright protection if there is “human selection and arrangement of the revelations.” In another case, it held that a monkey cannot register a copyright in photos it captures with a camera because the Copyright Act refers to an author's “children,” “widow,” “grandchildren,” and “widower”—terms that “all imply humanity and necessarily exclude animals.”
Based on these cases and others, the Office's existing registration guidance has long mandated that works must be the product of human authorship. In the 1973 edition of the Office's Compendium of Copyright Office Practices, the Office cautioned that it would not register materials that did not “owe their origin to a human agent.” The second edition of the Compendium, published in 1984, clarified that the “term authorship' implies that, for a work to be copyrightable, it must owe its origin to a human being.” In the current edition of the Compendium, the Office states that “to qualify as a work of authorship,' a work must be created by a human being” and that it “will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”
The Office's Application of the Human Authorship Requirement
As the agency responsible for overseeing the copyright registration system, the Office has extensive experience in evaluating works submitted for registration that contain human authorship combined with uncopyrightable material, including material generated by or with the assistance of technology. The Office begins by asking “whether the `work' is primarily one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.” This is necessarily a case-by-case inquiry.
In the case of works containing AI-generated material, the Office will assess whether the AI contributions are the result of “mechanical reproduction” or rather an author's “own original mental conception, to which [the author] gave visible form.” The answer depends on the circumstances, particularly how the AI tool operates and how it was used to create the final work.
If a work's traditional elements of authorship were produced by a machine, the work lacks human authorship, and the Office will not register it. For instance, when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the “traditional elements of authorship” are determined and executed by the technology—not the human user. Based on the Office's understanding of the generative AI technologies currently available, users do not exercise ultimate creative control over how such systems interpret prompts and generate material. Instead, these prompts function more like instructions to a commissioned artist—they identify what the prompter wishes to have depicted, but the machine determines how those instructions are implemented in its output.
However, in some cases, a work containing AI-generated material will also contain sufficient human authorship to support a copyright claim. For example, a human may select or arrange AI-generated material in a sufficiently creative way that “the resulting work as a whole constitutes an original work of authorship.” Or an artist may modify material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection. In these cases, copyright will only protect the human-authored aspects of the work, which are “independent of” and do “not affect” the copyright status of the AI-generated material itself.
This policy does not imply that technological tools cannot be part of the creative process. Authors have long used such tools to create their works or to recast, transform, or adapt their expressive authorship. For example, a visual artist who uses Adobe Photoshop to edit an image remains the author of the modified image, and a musical artist may use effects such as guitar pedals when creating a sound recording. In each case, what matters is the extent to which the human had creative control over the work's expression and “actually formed” the traditional elements of authorship.
Guidance for Copyright Applicants
In line with the Office's policies, applicants must disclose the inclusion of AI-generated content in a work submitted for registration and provide a brief explanation of the human author's contributions to the work. Such disclosures are crucial for the Register of Copyrights in evaluating the preparation, identification, ownership, or duration of the copyright.
A. How To Submit Applications for Works Containing AI-Generated Material
Individuals who use AI technology in creating a work may claim copyright protection for their own contributions to that work. They must use the Standard Application and identify the author(s) and provide a brief statement in the “Author Created” field describing the human authorship. AI-generated content that is more than de minimis should be explicitly excluded from the application in the “Limitation of the Claim” section. Applicants may also provide additional information in the “Note to CO” field in the Standard Application.
B. How To Correct a Previously Submitted or Pending Application
Applicants who have already submitted applications for works containing AI-generated material should ensure that the information provided to the Office adequately disclosed that material. If not, they should take steps to correct their information so that the registration remains effective.
For pending applications, applicants should contact the Copyright Office's Public Information Office and report that their application omitted the fact that the work contained AI-generated material. For processed applications, the applicant should correct the public record by submitting a supplementary registration, describing the original material that the human author contributed, disclaiming the AI-generated material, and completing the “New Material Added/Other” field.
Applicants who fail to update the public record after obtaining a registration for material generated by AI risk losing the benefits of the registration. The Office may take steps to cancel the registration, or a court may disregard a registration in an infringement action pursuant to section 411(b) of the Copyright Act if it concludes that the applicant knowingly provided the Office with inaccurate information, and the accurate information would have resulted in the refusal of the registration.
Frequently Asked Questions (FAQ)
Q: Can AI-generated content be copyrighted?
A: AI-generated content is not eligible for copyright protection because it lacks human authorship. Copyright laws are designed to protect the creative output of human beings. As a result, any content generated solely by artificial intelligence or other non-human processes does not qualify for copyright protection.
Q: How do I submit a copyright application for a work containing AI-generated material?
A: To submit a copyright application for a work containing AI-generated material, use the Standard Application. In the application, you must disclose the presence of AI-generated content and provide a brief explanation of the human author's contributions to the work. You should also exclude any AI-generated content that is more than de minimis in the "Limitation of the Claim" section. This way, you ensure that your copyright registration only covers the human-authored aspects of the work.
Q: How do I correct a previously submitted or pending application containing AI-generated material?
A: If you have a pending application that failed to disclose AI-generated material, contact the Copyright Office's Public Information Office and report the omission. If your application has already been processed and resulted in a registration, you should submit a supplementary registration to correct the public record. In the supplementary registration, describe the original material contributed by the human author in the "Author Created" field, disclaim the AI-generated material in the "Material Excluded/Other" field, and complete the "New Material Added/Other" field. The Office will issue a new supplementary registration certificate with a disclaimer addressing the AI-generated material, provided there is sufficient human authorship.
Q: Can I list an AI technology or the company that provided it as an author or co-author?
A: No, you should not list an AI technology or the company that provided it as an author or co-author simply because it was used during the creation of your work. Copyright protection is only available for works created by human beings, and listing non-human entities as authors is inconsistent with this principle.
Q: What happens if I fail to update the public record after obtaining a registration for material generated by AI?
A: If you fail to update the public record after obtaining a registration for material generated by AI, you risk losing the benefits of the registration. The Copyright Office may take steps to cancel the registration if it becomes aware that essential information for the evaluation of registrability has been omitted or is questionable. Additionally, a court may disregard a registration in an infringement action under section 411(b) of the Copyright Act if it concludes that the applicant knowingly provided the Office with inaccurate information, and the accurate information would have resulted in the refusal of the registration.
Q: Can I still claim copyright protection if I used AI-generated material in my work?
A: Yes, you can still claim copyright protection for your own contributions to the work, even if it contains AI-generated material. However, copyright protection will only extend to the human-authored aspects of the work, which are independent of the AI-generated material. You may be able to claim copyright protection for the creative selection, arrangement, or modification of AI-generated content, as long as these contributions meet the standard for copyright protection.
Q: How do I know if my work contains sufficient human authorship to be eligible for copyright protection?
A: A work must contain a significant amount of original human creativity to be eligible for copyright protection. Human authorship can include elements like literary, artistic, or musical expression, as well as selection, coordination, or arrangement of content. If a human creator has ultimate creative control over the work's expression and has formed the traditional elements of authorship, the work will likely contain sufficient human authorship for copyright protection.
Q: What if I am unsure about how to fill out my copyright application for a work containing AI-generated material?
A: If you are unsure about how to fill out your copyright application, you can provide a general statement in the application that your work contains AI-generated material. The Copyright Office will contact you when your claim is reviewed and will guide you on how to proceed. In some cases, the use of AI tools will not raise questions about human authorship, and the Office will explain that nothing needs to be disclaimed on the application.
Q: How do I correct a previously submitted or pending application that didn't disclose AI-generated material?
A: For pending applications, contact the Copyright Office's Public Information Office and report the omission of AI-generated material in your application. Staff will add a note to the record for the examiner to see when reviewing the claim. If necessary, the examiner will correspond with you to obtain additional information about the human authorship in the work.
For processed applications that resulted in a registration, submit a supplementary registration to correct the public record. In the supplementary registration, describe the original material contributed by the human author, disclaim the AI-generated material, and complete the necessary fields. The Office will issue a new supplementary registration certificate with a disclaimer addressing the AI-generated material, provided there is sufficient human authorship.
Q: What are the consequences of not updating the public record for a work containing AI-generated material?
A: If you fail to update the public record after obtaining a registration for a work containing AI-generated material, you risk losing the benefits of the registration. The Copyright Office may cancel the registration if it becomes aware that essential information has been omitted or is questionable. Additionally, a court may disregard a registration in an infringement action under section 411(b) of the Copyright Act if it concludes that the applicant knowingly provided inaccurate information and that the accurate information would have resulted in the refusal of the registration.
Q: How can I be sure if my work has sufficient human authorship for copyright registration?
A: The Copyright Office evaluates works on a case-by-case basis. To determine whether a work has sufficient human authorship, the Office considers the extent to which the human creator had creative control over the work's expression and "actually formed" the traditional elements of authorship. If a human creator selects or arranges AI-generated material in a creative way that results in an original work of authorship or modifies the AI-generated material to meet the standard for copyright protection, the human-authored aspects of the work may be eligible for copyright protection.
Q: Can I list an AI technology or the company that provided it as an author or co-author on my copyright application?
A: No, you should not list an AI technology or the company that provided it as an author or co-author simply because you used the technology when creating your work. Copyright protection is limited to works of human authorship, and AI-generated content does not qualify.
Q: What if I'm unsure how to fill out the copyright application for my work containing AI-generated material?
A: If you are unsure about how to fill out the application, you can provide a general statement that your work contains AI-generated material. The Copyright Office will contact you when the claim is reviewed and determine how to proceed. In some cases, the use of an AI tool may not raise questions about human authorship, and the Office will explain that nothing needs to be disclaimed on the application.
Q: What should I do if I've already submitted an application for a work containing AI-generated material but did not disclose that fact?
A: If your application is still pending before the Office, you should contact the Copyright Office's Public Information Office and report the omission of AI-generated material in your work. The staff will add a note to the record for the examiner to see when reviewing the claim. If necessary, the examiner will correspond with you to obtain additional information about the nature of the human authorship included in the work.
If your application has already been processed and resulted in a registration, you should correct the public record by submitting a supplementary registration. A supplementary registration is used to correct an error in a copyright registration or to amplify the information given in a registration. In the supplementary registration, describe the original material that the human author contributed, disclaim the AI-generated material, and complete the "New Material Added/Other" field. As long as there is sufficient human authorship, the Office will issue a new supplementary registration certificate with a disclaimer addressing the AI-generated material.
Q: What are the consequences of not updating the public record after obtaining a registration for material generated by AI?
A: If you fail to update the public record after obtaining a registration for material generated by AI, you risk losing the benefits of the registration. The Copyright Office may take steps to cancel the registration if it becomes aware that essential information has been omitted or is questionable. Additionally, a court may disregard a registration in an infringement action pursuant to section 411(b) of the Copyright Act if it concludes that you knowingly provided the Office with inaccurate information, and the accurate information would have resulted in the refusal of the registration.
