As of right now, copyright can only be granted to human creators, and GenAI tools are not human. If someone asked CoPilot to write a haiku about a rainbow, can it be registered for copyright protections? Is image created in Dall-E based on a human prompt protected by copyright? It depends.
In March 2023, the United States Copyright Office published Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence. This document outlines the requirements for a piece of work to be registered for a copyright. The determining factor in whether or not a work which involved the use of GenAI is how much of the work was done by a human.
Example of an AI-generated text that could not be registered for copyright:
"...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
An example of a work that may be registered for copyright:
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
Please see the linked work for sources from the footnotes.
