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The U.S. Copyright Office has just published its guidelines for Artificial Intelligence and copyright protection.
Artificial Intelligence : The technologies, described as “generative AI”, raise the central issue of copyright protection for the content they produce.
Since companies such as OpenAI and StabilityAI, Dall-E, Midjourney… started publishing AI-based text and image generators in late 2022, copyright applications in the US for works using AI have increased dramatically. In response to this craze, the US Copyright Office (USCO) recently issued guidelines for copyright protection of AI-enabled works.
Are these creations copyrightable ?
Last year, author Kris Kashtanova claimed to be the first person to have been granted a copyright for a work created via AI. Indeed, the application to register her comic book “Zarya of the Dawn”, whose images were created exclusively by AI, was approved by the USCO.
The USCO then reconsidered its decision and asked for additional information since the images were created with the help of Midjourney.
After re-examining the file, the USCO decided to cancel its decision to grant copyright and issued a new modified certificate:
➡ the elements created by Kris Kashtanova, namely the writing, will be protected by copyright ;
➡ on the other hand, the images generated by the AI are not copyrightable, as only human creations can be copyrighted.
Thus, the same work can have a partial protection regime according to the different sources of the creation.
In this case, the images were totally generated by the AI. But, in other cases, it could be possible that the human selects, adapts and arranges the content generated by the AI in a sufficiently creative way so that the resulting work as a whole could constitute an original work protectable by copyright.
So there will be a case-by-case assessment by the USCO. Applicants who submit their works for registration in the US will have to be precise in the explanation of their creative process (how was the AI used? for which part of the work? …).
Zarya of the Dawn, par Kris Kashtanova.
