After several months of delays, the U.S. Copyright Office has published part two of its three-part report on the copyright issues raised by artificial intelligence (AI). This part, entitled “Copyrightability,” focuses on whether AI-generated content is eligible for copyright protection in the U.S.

An output generated with the assistance of AI is eligible for copyright protection if there is sufficient human contribution. The report notes that copyright law does not need to be updated to support this conclusion. The Supreme Court has explained that individuals can receive copyright protection when they translate an idea into a fixed and tangible medium. When an AI model supplies all creative effort, no human can be considered an author, thus no copyrightable work. However, when an AI model assists a human’s creative expression, the human is considered an author. The Copyright Office analogizes this to the principle of joint authorship because a work is copyright-eligible even if a single person is not responsible for creating the entire work.

The contribution level is determined by what a person provides to the AI model. The Copyright Office reasoned that inputting a prompt by itself is not a sufficient contribution to be considered an author. The report analogizes this to a person hiring an artist, where the person may have a general artistic vision, but the artist produces the creative work. Additionally, because AI models generally operate as a black box, a user is cannot exert the necessary level of control to be considered an author. 

However, when a user inputs a prompt in combination with their original work, the resulting AI-generated output is copyrightable for the material that is perceivable from their expression. The author’s own work helps provide the AI model with a starting point and limits the range of outputs.

Finally, AI-generated content can be copyrightable when arranged or modified with human creativity. For example, while an AI-generated image is not copyrightable, a compilation of the images and a human-authored story can be protected by copyright. The Copyright Office is currently working on the third part of its report, which should be published later this year and will focus on the implications of using protected works to train AI models.