Technology

The article really oversimplifies things.

In my use case, for example, I do in fact own the copyright to my own art, as a significant portion of it was created by traditional methods using AI as one more tool, not simply by telling it what to make and rolling with it.

III. The Office's Application of the Human Authorship Requirement

As the agency overseeing the copyright registration system, the Office has extensive experience in evaluating works submitted for registration that contain human authorship combined with uncopyrightable material, including material generated by or with the assistance of technology. It begins by asking “whether the `work' is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.” [23]

In the case of works containing AI-generated material, the Office will consider whether the AI contributions are the result of “mechanical reproduction” or instead of an author's “own original mental conception, to which [the author] gave visible form.” [24]

The answer will depend on the circumstances, particularly how the AI tool operates and how it was used to create the final work.[25]

This is necessarily a case-by-case inquiry.

If a work's traditional elements of authorship were produced by a machine, the work lacks human authorship and the Office will not register it.[26]

For example, when an AI technology receives solely a prompt [27]

from a human and produces complex written, visual, or musical works in response, the “traditional elements of authorship” are determined and executed by the technology—not the human user. Based on the Office's understanding of the generative AI technologies currently available, users do not exercise ultimate creative control over how such systems interpret prompts and generate material. Instead, these prompts function more like instructions to a commissioned artist—they identify what the prompter wishes to have depicted, but the machine determines how those instructions are implemented in its output.[28]

For example, if a user instructs a text-generating technology to “write a poem about copyright law in the style of William Shakespeare,” she can expect the system to generate text that is recognizable as a poem, mentions copyright, and resembles Shakespeare's style.[29]

But the technology will decide the rhyming pattern, the words in each line, and the structure of the text.[30]

When an AI technology determines the expressive elements of its output, the generated material is not the product of human authorship.[31]

As a result, that material is not protected by copyright and must be disclaimed in a registration application.[32]

In other cases, however, a work containing AI-generated material will also contain sufficient human authorship to support a copyright claim. For example, a human may select or arrange AI-generated material in a sufficiently creative way that “the resulting work as a whole constitutes an original work of authorship.” [33]

Or an artist may modify material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection.[34]

In these cases, copyright will only protect the human-authored aspects of the work, which are “independent of” and do “not affect” the copyright status of the AI-generated material itself.[35]

This policy does not mean that technological tools cannot be part of the creative process. Authors have long used such tools to create their works or to recast, transform, or adapt their expressive authorship. For example, a visual artist who uses Adobe Photoshop to edit an image remains the author of the modified image,[36]

and a musical artist may use effects such as guitar pedals when creating a sound recording. In each case, what matters is the extent to which the human had creative control over the work's expression and “actually formed” the traditional elements of authorship.[37]