Can AI Content Be Copyrighted?

As a general rule, content created by an AI program cannot be copyrighted. The Copyright Office has a longstanding rule that only creative works authored by humans can get copyright protection – photographs taken by the Hubble telescope and paintings made by elephants are examples of other creations that fail to meet the human authorship requirement. So when an AI program provides the creative elements, the Copyright Office will deny copyright protection.

As to their reasoning, most AI-generated works are created from prompts provided by humans. The Copyright Office compares this to someone instructing an artist to create a painting and then trying to claim authorship or joint authorship with the painter. In most cases, this won’t fly because the instructions are simply ideas, and the painter is the one who supplies the creative elements. While it’s possible that the prompt is so detailed there are no creative elements left for the AI program to fill in, it’s unlikely a person would take the time and effort to create such a prompt – at that point, you may as well do it yourself. In addition, the output from these AI programs is currently extremely unpredictable; the same prompt can generate different outputs every time it’s entered. In the Copyright Office’s opinion, this shows the user lacks sufficient control to be considered an author of the resulting work.

Of course, there is still a gray area where a work contains content from both a human and an AI program. In this situation, the question is whether AI acts as a tool to assist the human, or whether it acts as a substitute for human creativity. The Copyright Office says it will decide this question on a case by case basis.

For example, a human may feed an image into an AI program and tell the program to make certain modifications. If the modifications are specific enough that the AI is not providing creative expression, the entire result could get copyright protection. If the AI program does provide creative expression, then the AI program’s contribution won’t get protection, but the human authored content will.

The same rule applies when a human modifies content generated by an AI program. The selection and arrangement of the content can get copyright protection, as can any artistic modifications the human makes to the content. Anything created by the AI program is still not protected.

The Copyright Office covered other related topics, such as how this question is being addressed in other countries, but the summary above is the information most relevant to American creatives. If you have questions or would like additional guidance, you can reach me at kaway@kawaylaw.com.