Copyright Considerations In Artificial Intelligence

Under 17 U.S.C. §201, the ownership of a copyright in an original work is determined by identifying the author of a work. Specifically, the author of a work owns the rights associated with an original work of expression. Under the law, the author — and copyright-holder — is the individual (or individuals) who creates the work and fixes it in a tangible medium. However, what happens when the "author" of a copyrightable work is not human? More specifically, who or what is entitled to claim the ownership when an original work is created by AI?

Artificial intelligence has become a key tool for developers and artists around the world. Some have used it to create unique creations, others have used it to create derivative works and still others have used it to circumvent potential infringement claims. However, the U.S. Copyright Office has yet to issue guidance on the ownership rights of these works. Section 306 of the Compendium of U.S. Copyright Office Practices provides that "[t]he U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being." As such, no software program will be recognized as an author of a copyrightable work. In particular, the Compendium proclaims that "copyright law only protects 'the fruits of intellectual labor' that 'are founded in the creative powers of the mind.'" Crucially, the Copyright Office will refuse to register a copyright claim if a human being did not create the work.