The United States Copyright Office’s software record-storing software caused a software glitch that revoked copyright registration for a graphic comic book created by artificial intelligence. [1] The Midjourney software was responsible for creating images using its own text-to image tool.
Although the problem was quickly fixed, it raises important questions about the intersection of AI and copyrights in the United States. This article will address:
- The U.S. copyright law is inextricably connected to the “human involvement” factor
- In the process of litigation regarding a rejected AI-based copyright request;
- The manipulation of AI by the Office as a business tool for its creation of a small-claim tribunal.
This topic will lose some of its novelty by addressing the few important legal developments regarding AI and the Office.
The Office’s decisions seem to mirror Kashtanova’s erratic approach to issuing regulations and guidance pertaining to AI-creations. The Office’s decision to issue guidance and regulations pertaining to AI-creations seems to mirror Kashtanova’s filing. [3] On October 28, 2022, Kashtanova had filed her application.
This request echos the Office’s concise justification in recent determinations against AI created works for copyright registration. All rejected applications seem to have focused on the degree of “human involvement” or lack thereof in relation to the final product (“creation”), as provided by the Office’s recent determinations against AI-created works seeking copyright registration. [6] But does the Act only apply to humans?
The field of AI is growing nationally, internationally, and across disciplines. Researchers and the press have asked whether the Office can set clear limitations on what creations made with AI might be eligible for copyright registration. The Office attempted to respond to one source by saying that it would not grant registration to work claimed to be created only by machine with AI. [7]
This statement is helpful if a work is exclusively sourced from AI. However, it does not provide any guidance or sliding scale for creations heavily dependent on AI. The Office would accept a work that meets a threshold of 50% or 75% of AI-involvement to register it. The U.S. legislature and the Office should immediately determine how much “human involvement” is required to register copyright.
Potential applicants would benefit from a basic sliding scale. It would also provide guidance for future AI configurations and reduce the time and cost of the registration process.
The question of veracity arises about the application: Did the AI get proper credit for its contribution? How does the Office verify “human involvement?” The copyright registration will include a section called “Limitation of Claim”, which may provide additional options. “Limitation Of Claim” allows applicants to deny credit for uncreditable material. This includes: compilations, derivative works, compilations; material previously published; material previously registered; material in the public domain; material that is not in the public domain; and/or material owned by an individual or legal entities other than the claimant named in the application. This section is most likely the best place to deny any AI involvement from that particular application. Kashtanova, for example, most likely disclaimed Midjourney AI-created images from this section of her registration.
There is currently debate about whether copyright law should include a “human” element. Stephen Thaler, a computer scientist, asked the U.S. District Court for the District of Columbia for an order to reverse an Office decision that said creative works must be created by humans in order to obtain copyright protection. Copyright Act “doesn’t restrict copyright to humans-made works nor does any case law.” [10] Stephen Thaler, a computer scientist, asked the U.S. District Court for the District of Columbia to overturn an Office decision that stated creative works must be made by humans to receive copyright protection. Thaler’s recent filing noted that the Office’s ruling was based on outdated precedent as the U.S.
The terms and conditions of AI-generation software, such as Midjourneyney, can place additional restrictions on the type license that is granted to users. Users such as Kashtanova might be prohibited from seeking ownership of any AI creation, depending on the terms.
Due to the increasing importance of copyright issues, Congress passed the Copyright Alternative in Small-Claims Enforcement Act (CASE Act), in 2020. It established a Copyright Claims Board. Three Copyright Claim officers (CCOs) who are experts in copyright law and make decisions via an online system, rather than through judges.
The CCB provides a range of claims. A party accused of infringement may file a claim to have the proceedings halted; a claim for damages in connection to a Digital Millennium Copyright Act notification; or a claim for misrepresentation. [14] The claimant can then file suit against the respondent in federal courts.
The CCB is a faster and cheaper way to obtain copyright determinations. Federal lawsuits cannot be started until copyright registration has been completed. Many creators and businesses have filed claims using this cost-effective, quick system. [16] While no final decisions have been made, the Office relies on the CCB to help streamline legal processes. The platform’s virtual CCB, Office correspondence and legal documentation are all technological advances similar to AI used in the creation copyrighted works. The CCB wouldn’t exist without technology. How much “human involvement” does the CCB have in its business practices according to the Office’s standards?
Kashtanova’s comic book serves as a perfect metaphor for the convergence between AI and copyright in America, considering the technical glitch and the initial possibility of cancellation. It may appear to be a new issue at first glance but its foundations are well documented by the Office and legislative branches as they attempt to adapt to current times. As Thaler stated, obsolete precedent and semantic preferences need to be updated as society develops. Our culture has quickly adapted and accepted different pronouns that are not related to gender or sexual orientation. This was tested at the height of the pandemic. It seems outdated to require that you expressly identify and separate what is “nonhuman” in order to get copyright protection. Even the Office is heavily dependent on its “nonhuman” creations.
[1] Katyanna Quach, Software Glitch Revokes Copyright Protection for AI-Generated Comic Book, The Register (Jan. 25, 2023), https://www.theregister.com/2023/01/25/glitch_us_copyright_office_ai/.
[2] George He, AI – Is it Art, Yet?, JOLT Digest – Harvard Law School (Oct. 20, 2022), https://jolt.law.harvard.edu/digest/ai-is-it-art-yet.
[3] Franklin Graves (U.S. Copyright Office Backtracks on Registration of Partially AI-Generated Work, IP Watchdog (Nov. 1, 2022, 12:15 PM), https://ipwatchdog.com/2022/11/01/us-copyright-office-backtracks-registration-partially-ai-generated-work/id=152451/.
[4] Id.
[5] James Vincent, The Scary Truth about AI Copyright is Nobody Knows What Will Happen Next, The Verge (Nov. 15, 2022, 10:00 AM), https://www.theverge.com/23444685/generative-ai-copyright-infringement-legal-fair-use-training-data.
[6] Burrow–Giles Lithographic Co.
[7] Riddhi Setty & Isaiah Poritz, ‘Wild West’ of Generative AI Poses Novel Copyright Questions, Bloomberg Law (Nov. 18, 2022, 11:00 AM), https://news.bloomberglaw.com/ip-law/wild-west-of-generative-ai-raises-novel-copyright-questions.
[8] U.S. Copyright Office, Help: Limitation of Claim, Copyright.gov, https://www.copyright.gov/eco/help-limitation.html (last visited Feb. 1, 2023).
[9] Thaler, U.S. District Court for the District of Columbia No. 1:22-cv-01564.
[10]Id.
[11] Dennis Crouch, An Update on AI Inventorship and Authorship Cases, Patently-O (Jan. 24, 2023), https://patentlyo.com/patent/2023/01/update-inventorship-authorship.html.
[12] Case Act of 2019, H.R.2426 (116th Cong. (2019), https://www.congress.gov/bill/116th-congress/house-bill/2426/text.
[13] Id.
[14] Id.
[15] Id.
[16] June 16, 2022 was the official launch date of the CCB. Copyright Claims Board Frequently Asked Questions,CCB.gov. (last visited February 1, 2023).
The first Attorney at Law Magazine article was Novel Copyright decisions: Artificial Intelligence, and United States Copyright Law.