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USCO Makes Copyright Ruling on AI-Generated Artwork

Ever since GPT-3 sparked the interest in Generative AI last year, one of the primary points of contention to define the narrative around this tool is the field of copyright and AI-Generated artwork. Specifically, whether or not art created by AI could be copyrighted. Finally, the US Copyright Office came to a ruling last Thursday (Mar. 16). And it’s a bit of a cop-out.

Any images that are produced by giving a text prompt to current generative AI models, such as Midjourney or Stable Diffusion, cannot be copyrighted in the US. That's according to the US Copyright Office (USCO), which has equated such prompts to a buyer giving directions 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," the USCO wrote in new guidance it published to the Federal Register.

"When an AI technology receives solely a prompt 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," the office stated.

Current rules state that the USCO “will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.” – Engadget

It’s clear that the Gov. is separating the output and input of this creative process. They’re focusing solely on the output from the AI, and not deeming the input (a written prompt) as that influential to the creation of this art.

However, the office has left the door open to granting copyright protections to work with AI-generated elements. – Engadget

So does this mean that using AI partially in a work will change this ruling? If the artist alters what the Generative AI created, then does it make that a product of human creativity? And if so, how much alteration is needed to meet the criteria?

Overall, I’m a little disappointed in this ruling. Not because I’d rather see the decision go the other way. Rather, because it just seems like a cop-out ruling. As if they really didn’t take the time to understand this technology and where the skilled-nuance of working with an AI-collaborator exists. And that’s sad when Harvard professors are calling for AI guardrails and Sam Altman is sharing his concerns over the technology he’s pioneering.

Anyone working in AI should be thrilled because the USCO left so much room for discussion and also left the door open just enough to rewrite these laws later. They concluded their ruling with a solicitation to the public to submit their comments, in addition to starting an initiative exploring copyright law and policy issues related to AI.

In other words, they’re going to look to the AI industry to write these rules. Not right now. But the invitation is waiting for them.