DISCLAIMER: Generative Artificial Intelligence (GAI) platforms were used for research and fact checking for this blog. The following narrative was written and edited by humans.

Disclosure of AI-generated materials is a critical requirement in the copyright registration process, and it is necessary to clearly identify human-authored contributions that can be awarded copyright protection.

 

Copyright and AI

Federal copyright laws have existed in the United States since 1790, and it has never been a simple, easy process to understand, initiate, and maintain. The advent of Generative Artificial Intelligence (GAI) in the past few years has added layers of complexity to the process. This blog identifies some of the more problematic issues and suggest ways to approach them.

The US Copyright Office (USCO) is empowered to administer copyright laws by establishing rules, regulations and procedures governing the registration of content for copyright protection. While content is under copyright protection in the US once it has been captured in a tangible form, enforcement of the exclusive rights granted fall to the copyright holder. An application for copyright registration with the USCO must have been submitted and the official “certificate of registration” been received from the USCO before a claim of copyright infringement can be filed in federal court.

 

AI disclosure requirement

Generative artificial intelligence is being used in a variety of roles to create content that may qualify for copyright protection.  In 2023 the USCO issued guidance for registering works that contain material generated by artificial intelligence. Applicants are directed to disclosure of how artificial intelligence was used in the creation of works submitted for copyright registration.

This is where it gets tricky because AI use can be as simple as creating a table of contents, which is an example of de minimis use that does not need to be disclosed, to an AI platform being used to create the entire work or a substantial part with minimal human involvement. Fully AI-generated content violates the “human authorship requirement” and results in copyright registration being denied.

Decisions on registration approval are decided on a case-by-case basis, and there have been numerous court cases seeking to overturn these decisions. Several of the pending cases appear to be making their way to the US Supreme Court.

 

Copyright Registration Process

While the US Copyright Office has been fairly quick to require that AI has to be disclosed during the copyright registration process, that disclosure is not very easy to accomplish. The process of completing the “Standard Form” application is tedious and frustrating from a user’s perspective.

The current copyright registration online process, called eCO (Electronic Copyright Office), allows for online registration and submission of digital files. Unfortunately it has an outdated user interface with small font sizes and poor layout. And there are browser compatibility issues that cause inconsistencies while completing the online form.

The US Copyright Office issued Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence to clarify its policies for examining and registering works with content generated by AI technologies. While this document reinforces the “human authorship requirement,” it also addresses works that contain both AI-generated content and human-authored content. Copyright protection is only extended to the human-authored content in the work.

The guidance document above indicates that AI-generated content is to be disclosed in the “Limitations of Claim” section of the application. There is an outdated video tutorial that walks you through the eCO standard submission form.  Unfortunately, the video has not been updated to include anything about disclosing AI-generated content in the revised “Limitation of Claim” section that is shown below with three areas called out.

 

Material Excluded

Limitation of Claim section, eCO Copyright Registration Form

The column to the left labeled “Material Excluded” includes check boxes for four types of materials to be excluded from consideration of copyright protection. It also has an “Other” category with a very small text input box to type in the details of the AI-generated materials to be declared. 

The Copyright and Artificial Intelligence, Part 2: Copyrightability report that came out on Jan. 29, 2025, provides language about disclosure of any AI-generated material that is more than de minimis, which means more than a trivial amount.

That might be an issue if what is trivial to the submitter is viewed as significant to the copyright registration specialist who reviews the application for copyright registration.

 

Material Included

The column on the right has places to indicate what is being claimed for copyright protection. It also has an “Other” category with a very small text input box to type in the details of the human-authored elements to be declared. The reviewer will decide if there is sufficient human authorship in the work to warrant copyright registration, and if so, for which elements.

 

Note to CO

The form also provides space to type in additional notes for the examiner that could be helpful in deciding the merits of your claim. This is the location to describe the human author’s creative contribution in more detail and perhaps elicit a contact from the Copyright Office. The Copyright Office contacts applicants seeking clarification and addressing issues in approximately 24% of claims.

@TheCopyrightDetective is the handle used to identify Dr. C. Daniel Miller on social media, and the name is federally registered as a trademark.

#TheCopyrightDetective