As artificial intelligence (AI) continues to advance, new questions arise about how copyright and patent laws will apply to new content created by AI. Generative AI programs, such as Open AI’s ChatGPT and DALL-E 2, create new images, texts, audio, and other content (“outputs”) based on textual prompts provided by a user (“inputs”). Generative AI programs take the inputs entered by the user and create a new work based on those inputs and the variety of data sets used to train the AI. AI “training” generally involves exposing the AI to large quantities of existing works.
Are AI Outputs Protected by Copyright?
The issue of copyright protection for AI outputs will likely be determined in part by the concept of authorship. The Copyright Act gives copyright protection to “original works of authorship.” The Copyright Act does not define who or what an author must be, but the U.S. Copyright Office only affords copyright protection to works created by human beings. Courts have long denied copyright protection to works created by nonhumans, and AI is now being categorized as nonhuman for copyright purposes.
In September 2022, writer Kristina Kashtanova registered a copyright for a graphic novel. However, the U.S. Copyright Office later initiated a cancellation proceeding against Kashtanova’s copyright because she did not disclose that the images in her graphic novel were created by a generative AI called Midjourney. Kashtanova argued that she “authored” the images via “a creative, iterative process” involving “multiple rounds of composition, selection, arrangement, cropping, and editing for each image,” comparing her use of AI to a tool akin to how a photographer uses a camera as a tool. The Copyright Office rejected this argument, believing that Midjourney was not a tool under Kashtanova’s control, but instead that the manner in which Midjouney created images was ultimately unpredictable. The Office compared Kashtanova’s use of the AI to a client hiring an artist, with her inputs seen as mere suggestions to the “artist” rather than orders. Regarding Kashtanova’s time and effort with AI to create the images, courts have generally rejected “sweat of the brow” as a basis to support copyright protection for uncopyrightable works because effort has “no bearing on whether a work possesses the minimum creative spark required by the Copyright Act and the Constitution.”
