The United States Copyright Office stated in its latest guidelines released on Monday that generative artificial intelligence (GenAI) output based purely on text prompts — even detailed ones — isn’t protected by the current copyright law. The Office’s report emphasized that copyright requires an original work of human expression — AI can assist, but it can’t be the sole “author.”
This stems from cases like Thaler v. Perlmutter (2023), where a court ruled that an AI-generated image lacked human authorship and thus wasn’t copyrightable. Dr. Thaler had registered a visual artwork that he claims was authored “autonomously” by an AI program called the Creativity Machine.
In September 2022, Kris Kashtanova registered a copyright for a graphic novel illustrated with images that Midjourney generated in response to text inputs. In October 2022, the Copyright Office initiated cancellation proceedings, noting that Kashtanova had not disclosed the use of AI. Kashtanova responded by arguing that the images were made via “a creative, iterative process.”
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GenAI also raises questions about copyright infringement amidst ongoing copyright lawsuits faced by OpenAI, Microsoft, Perplexity, and other AI firms which train their models on previously published data. Copyright lawsuits aim to protect intellectual property rights and prevent unauthorized use of creative works.
Commentators and courts have begun to address whether generative AI programs may infringe copyright in existing works, either by making copies of existing works to train the AI or by generating outputs that resemble those existing works.
For instance, OpenAI is facing lawsuits in sixteen different countries including plaintiffs like Indian news agencies (NDTV, ANI) and even the New York Times in a class action suit for training its models on their news content. OpenAI has defended themselves, citing the fair use doctrine, since its purpose is to be “transformative” and also, helps combat geopolitical rivals like China.
Yet, more than 35% of the world’s top 1,000 websites now block OpenAI’s web crawler, according to data from Originality.AI. And around 25% of data from “high-quality” sources has been restricted from the major datasets used to train AI models, a study by MIT’s Data Provenance Initiative found.
For photographers, visual artists, and musicians—particularly freelance and independent creators who already face economic instability—the influx of AI-generated content that competes with their work poses significant financial threats.
Interestingly, the first ever global study measuring the economic impact of AI in the music and audiovisual sectors calculates that GenAI will enrich tech companies while substantially jeopardising the income of human creators in the next five years — a loss projected to reach 24% (music) and 21% (audio-visual) of their revenues by 2028.
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Currently, artists and musicians are at the forefront of this disruption and ideally, there could be a potential gain.
But there’s a flip side. Proving a copyright claim on a work made with the help of AI can get tricky depending on the user’s contribution and changes made to the AI-generated output.
The Copyright Office demands “substantial” human involvement, but where does one draw the line?