Copyright in Works Created with Generative AI
The widespread use of generative AI programs raises the question of who, if anyone, may hold the copyright to content created using these programs.
Do AI Outputs Enjoy Copyright Protection?
The question of whether or not copyright protection may be afforded to AI outputs—such as images created by DALL-E or texts created by ChatGPT—likely hinges at least partly on the concept of “authorship", as the Copyright Act affords copyright protection to “original works of authorship.” Although the Constitution and Copyright Act do not explicitly define who (or what) may be an “author,” the U.S. Copyright Office recognizes copyright only in works “created by a human being.” (Compendium of U.S. Copyright Office Practices, Chapter 306).
Assuming that a copyrightable work requires a human author, works created by humans using generative AI could still be entitled to copyright protection, depending on the nature of human involvement in the creative process. However, a recent copyright proceeding and subsequent Copyright Registration Guidance indicate that the Copyright Office is unlikely to find the requisite human authorship where an AI program generates works in response to text prompts. In March 2023, the Copyright Office released guidance stating that, when AI “determines the expressive elements of its output, the generated material is not the product of human authorship.”
Who Owns the Copyright to Generative AI Outputs?
Assuming some AI-created works may be eligible for copyright protection, who owns that copyright? In general, the Copyright Act vests ownership “initially in the author or authors of the work.” Given the lack of judicial or Copyright Office decisions recognizing copyright in AI-created works to date, however, no clear rule has emerged identifying who the “author or authors” of these works could be.