Can I Copyright AI-Generated Content?

by Kelley Way

I recently asked my social media followers what AI-related topic they were most interested in hearing about, and the question “Can I copyright AI-generated content?” was by far the most requested. So let’s talk about whether AI-generated content can be copyrighted.

First, let’s remember why we have copyright law in the first place. Copyright law exists to encourage creativity and allow creators to profit from their creations. Since these are the goals, it has long been held that only humans can create a copyrightable work. While non-humans may create artistic works, they do not need incentives to do so; therefore, they do not need copyright protection.

This means that AI-generated works are not copyrightable. AI programs are not humans and do not need an incentive to create. So if you ask an AI program to write a book for you, you will not be able to get copyright protection for the resulting work. The courts and the Copyright Office have both held firm on this point.

But what about when a book is a mix of AI-generated and human content? Or what if your first draft is AI-generated, and you then put a lot of effort into editing it?

The official stance is that the portion of the book that is human-generated can still get copyright protection. There was a case a few years ago where someone used Midjourney to create artwork, which they then put together to create a graphic novel. They did not disclose that part of it was AI-generated, and when they received a copyright, they proceeded to brag on social media about it.

Not surprisingly, the Copyright Office found out, and they canceled the copyright, then issued a new copyright for the text and the selection and arrangement of the artwork, i.e., the parts of the work that were human-authored. When the author objected, recounting how hard they worked to get the images they wanted from Midjourney, the Copyright Office explained their reasoning (and then they explained it some more in their Report on Copyright and Artificial Intelligence, which you can read here: https://copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-2-Copyrightability-Report.pdf.

The essence of their reasoning is that if you don’t know what the end result is going to look like, then you can’t be considered the creator. In the case of AI prompts, no matter how carefully you word your prompt, you still have no idea what the AI program is going to give you. Since you’re not making the creative decisions, the result will not be considered human-authored.

Let me reuse an example I gave before. If you take a photo, upload it into an AI program, and ask the program to make the photo three shades darker, you know what the new photo is going to look like. This new photo is still eligible for copyright. However, if you ask the AI program to add a cat dragging a bathrobe into the photo, the AI program is doing a lot of the creative heavy lifting. It’s deciding the color and size of the cat, the color and type of bathrobe, where the cat and bathrobe appear in the image, what direction the cat is facing, etc. All of these creative decisions, and if the human is not the one making them, then these new elements will not get copyright protection (but the underlying photo is still protected, since you took that picture).

So to think about it another way, if you are using an AI program as a tool to get to an intended result, and the creative decisions are all made by you, then you’re fine. If you’re asking the AI program to create something for you, and you’re letting the AI program make those creative decisions, then anything contributed by the AI program will not get copyright protection.

Now that we’ve answered, Can I copyright AI-generated content, feel free to read other blog articles I’ve written on this increasingly important topic, including ways that you can safely use AI, in my previous blog post “What Can a Writer Do With AI?”. For all other questions, feel free to email me at kaway@kawaylaw.com.