Can We Claim the Work Generated by AI Programs as Our Own?

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Written By: Christian Dattolo —

Over the past year, AI programs, such as ChatGPT and Fotor have received a great amount of attention. People have been using these programs to create a variety of creative content including writing, images, and even music. These AI programs can instantaneously generate content through machine learning, a technique that teaches computers to learn from experience and data.

However, while using these programs does make creating content much easier, can we claim that content as our own? For this, we can turn to Copyright Law.

Copyright Law can have various implications for AI-generated content, as it raises several legal and ethical considerations. Under the Copyright Act, the piece of legislation that outlines copyright protection, a copyright can be granted to “original work[s] of authorship fixed in any tangible medium of expression.” The US Supreme Court has interpreted “original” to have two components: the work must have been independently created by the author and the work must possess a minimum amount of creativity. Furthermore, the phrase “works of authorship” has been interpreted to mean creations of human authors. Additionally, Appellate courts have also ruled that copyright law does not protect the creations of non-human authorship. According to the Compendium of U.S. Copyright Office Practices, the Copyright Office will refuse to register a claim if it determines that a human being did not create the work.

AI-generated content also poses a challenge when determining authorship. As mentioned, the work must be original and created by a human author. But can AI-generated content be said to have been created by a human when the AI program is doing most of the work? Although the human may have provided instruction to the AI program, does this amount to human authorship? What if the content is primarily created by a human author, but an AI program was later used to generate the graphics that support the story?

Recently, the Copyright Office determined that if human creators are involved in the AI-generated content process, then they may retain copyright over their human contributions. For instance, if an individual uses an AI program to assist in creating a work, they may still be considered the primary author and copyright holder for the parts they actively contributed. This can be the case when AI is used as a tool or a facilitator but does not autonomously create the entire work. Consequently, the facts and circumstances of each matter must be considered, but generally entirely AI-generated works are not eligible for copyright protection.