While generative AI tools have become widely available and may seem like the fastest way to create social media posts, marketing materials, and other forms of content, there is a downside. Beyond the obvious—these tools often provide false information and just make up “facts”—AI generated content also isn’t protected under copyright law. This means that if your competitors end up using similar “content” (or outright stealing your AI generated “idea”), there’s probably nothing you can do about it.
Human Authorship is Required to Register a Copyright
Copyright law protects “original works of authorship fixed in any tangible medium of expression.” From the moment content is created and put down in some tangible format—a document on your computer, recorded to video, written down on a piece of paper—a bundle of rights known as “copyright” exists. (Unfortunately, there isn’t much that can be done to protect your copyright without actually registering the copyright.)
While the Copyright Act doesn’t actually define “authorship,” the courts have always interpreted it to mean human authors. And the Copyright Office has made it clear that it will not register works that were produced by machines or mechanical processes without any creative human input. In other words:
- Was the work principally produced by humans (with technology merely providing assistance)?
- Did a human conceive and execute the traditional elements of authorship (i.e., literary, artistic or musical expression)?
If You Use AI, You Can Only Protect the Portion of the Work that a Human Actually Contributed
For example, in a 2023 decision, the Copyright Office permitted Kristina Kashtanova to register her own contributions to an AI-generated comic book titled Zarya of the Dawn, but rejected her efforts to register the AI-generated images that made up the comic. Kashtanova tried to argue that her process of entering text prompts and then refining the prompts to change the images until she reached the final image should qualify as “human authorship.”
The Copyright Office acknowledged that there might be situations in which an artist modifies AI-generated work and those modifications might be protectable. But in this case, Kashtanova’s changes were too minor to be considered human authorship, regardless of how long it took her to prompt the AI to get to her desired result. If anything, the reason it took so long and so many prompts to get to a desired result highlights the problem with AI as a “creative” tool—users like Kashatanova don’t exercise any creative control over what gets generated; they are instead at the mercy of the algorithm. And that lack of creative control is what led to the denial of her copyright registration.
The Copyright Office did, however, permit registration of the comic book’s text (which Kashtanova wrote herself without AI) and the overall arrangement of the comic book.
Key Takeaways
Ultimately, whether a human being has done enough to warrant the registration (and ultimately protection) of content that was created with AI will almost always have to be answered on a case-by-case basis. The analysis may change as AI tools develop. But for now:
- Copyright registration applications should expressly exclude AI-generated content.
- If you don’t want your content to come across as “cookie cutter” in comparison to others in your industry, you still need to rely on human creative expression.
- If you rely on AI tools, then you cannot be upset when others in your industry also have suspiciously similar content.
- Consider updating your employment policies so that your employees know when the use of AI is acceptable and reminding employees not to disclose confidential or private information to AI tools.
- If you use AI to generate content, keep detailed records of the human elements, especially if you might want to apply for registration later.
