1 | Copyright Registration Guidance: Works Containing Material Generated by Articial Intelligence
U S C O
Copyright Registration Guidance:
Works Containing Material Generated
by Articial Intelligence
PUBLISHED ON THURSDAY, MARCH ,
FEDERAL REGISTER, VOL. , NO.
RULES AND REGULATIONS
CFR PART
ACTION: Statement of policy
SUMMARY: The Copyright Oce issues this statement of policy to clarify its practices for examining and
registering works that contain material generated by the use of articial intelligence technology.
DATES: This statement of policy is eective March 16, 2023.
FOR FURTHER INFORMATION CONTACT: Rhea Efthimiadis, Assistant to the General Counsel, by email at
meft@copyright.gov or telephone at 202–707– 8350.
SUPPLEMENTARY INFORMATION
I. Background
The Copyright Oce (the “Oce”) is the Federal agency tasked with administering the
copyright registration system, as well as advising Congress, other agencies, and the Federal
judiciary on copyright and related matters.
1
Because the Oce has overseen copyright
registration since its origins in 1870, it has developed substantial experience and expertise
regarding “the distinction between copyrightable and noncopyrightable works.”
2
The
Oce is empowered by the Copyright Act to establish the application used by applicants
seeking registration of their copyrighted works.
3
While the Act identies certain minimum
requirements, the Register may determine that additional information is necessary for the
Oce to evaluate the “existence, ownership, or duration of the copyright.”
4
Because the
Oce receives roughly half a million applications for registration each year, it sees new
trends in registration activity that may require modifying or expanding the information
required to be disclosed on an application.
One such recent development is the use of sophisticated articial intelligence (“AI”)
technologies capable of producing expressive material.
5
These technologies “train” on vast
quantities of preexisting human-authored works and use inferences from that training to
generate new content. Some systems operate in response to a user’s textual instruction,
called a “prompt.”
6
The resulting output may be textual, visual, or audio, and is determined
by the AI based on its design and the material it has been trained on. These technologies,
oen described as “generative AI,” raise questions about whether the material they produce
2 | Copyright Registration Guidance: Works Containing Material Generated by Articial Intelligence
is protected by copyright, whether works consisting of both human-authored and AI-
generated material may be registered, and what information should be provided to the
Oce by applicants seeking to register them.
These are no longer hypothetical questions, as the Oce is already receiving and
examining applications for registration that claim copyright in AI-generated material. For
example, in 2018 the Oce received an application for a visual work that the applicant
described as “autonomously created by a computer algorithm running on a machine.”
7
The application was denied because, based on the applicant’s representations in the
application, the examiner found that the work contained no human authorship. Aer a
series of administrative appeals, the Oce’s Review Board issued a nal determination
arming that the work could not be registered because it was made “without any creative
contribution from a human actor.”
8
More recently, the Oce reviewed a registration for a work containing human-authored
elements combined with AI-generated images. In February 2023, the Oce concluded
that a graphic novel
9
comprised of human-authored text combined with images generated
by the AI service Midjourney constituted a copyrightable work, but that the individual
images themselves could not be protected by copyright.
10
The Oce has received other applications that have named AI technology as the author
or co-author of the work or have included statements in the “Author Created” or “Note
to Copyright Oce” sections of the application indicating that the work was produced
by or with the assistance of AI. Other applicants have not disclosed the inclusion of AI-
generated material but have mentioned the names of AI technologies in the title of the
work or the “acknowledgments” section of the deposit.
Based on these developments, the Oce concludes that public guidance is needed on the
registration of works containing AI-generated content. This statement of policy describes
how the Oce applies copyright law’s human authorship requirement to applications to
register such works and provides guidance to applicants.
The Oce recognizes that AI-generated works implicate other copyright issues not
addressed in this statement. It has launched an agency-wide initiative to delve into a wide
range of these issues. Among other things, the Oce intends to publish a notice of inquiry
later this year seeking public input on additional legal and policy topics, including how
the law should apply to the use of copyrighted works in AI training and the resulting
treatment of outputs.
II. The Human Authorship Requirement
In the Oce’s view, it is well-established that copyright can protect only material that is
the product of human creativity. Most fundamentally, the term “author,” which is used
in both the Constitution and the Copyright Act, excludes non-humans. The Oce’s
registration policies and regulations reect statutory and judicial guidance on this issue.
3 | Copyright Registration Guidance: Works Containing Material Generated by Articial Intelligence
In its leading case on authorship, the Supreme Court used language excluding non-
humans in interpreting Congress’s constitutional power to provide “authors” the exclusive
right to their “writings.”
11
In Burrow-Giles Lithographic Co. v. Sarony, a defendant accused
of making unauthorized copies of a photograph argued that the expansion of copyright
protection to photographs by Congress was unconstitutional because “a photograph is
not a writing nor the production of an author” but is instead created by a camera.
12
The
Court disagreed, holding that there was “no doubt” the Constitution’s Copyright Clause
permitted photographs to be subject to copyright, “so far as they are representatives of
original intellectual conceptions of the author.”
13
The Court dened an “author” as “he to
whom anything owes its origin; originator; maker; one who completes a work of science
or literature.”
14
It repeatedly referred to such “authors” as human, describing authors as a
class of “persons”
15
and a copyright as “the exclusive right of a man to the production of
his own genius or intellect.”
16
Federal appellate courts have reached a similar conclusion when interpreting the text of
the Copyright Act, which provides copyright protection only for “works of authorship.”
17
The Ninth Circuit has held that a book containing words “authored by non-human
spiritual beings” can only qualify for copyright protection if there is “human selection
and arrangement of the revelations.”
18
In another case, it held that a monkey cannot
register a copyright in photos it captures with a camera because the Copyright Act refers
to an author’s “children,” “widow,” “grandchildren,” and “widower,”— terms that “all imply
humanity and necessarily exclude animals.”
19
Relying on these cases among others, the Oce’s existing registration guidance has long
required that works be the product of human authorship. In the 1973 edition of the
Oce’s Compendium of Copyright Oce Practices, the Oce warned that it would not
register materials that did not “owe their origin to a human agent.”
20
The second edition
of the Compendium, published in 1984, explained that the “term ‘authorship’ implies
that, for a work to be copyrightable, it must owe its origin to a human being.”
21
And
in the current edition of the Compendium, the Oce states that “to qualify as a work
of ‘authorship’ a work must be created by a human being” and that it “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.”
22
III. The Oce’s Application of the Human Authorship Requirement
As the agency overseeing the copyright registration system, the Oce has extensive
experience in evaluating works submitted for registration that contain human
authorship combined with uncopyrightable material, including material generated by
or with the assistance of technology. It begins by asking “whether the ‘work’ is basically
one of human authorship, with the computer [or other device] merely being an assisting
instrument, or whether the traditional elements of authorship in the work (literary,
artistic, or musical expression or elements of selection, arrangement, etc.) were actually
conceived and executed not by man but by a machine.”
23
In the case of works containing
AI-generated material, the Oce will consider whether the AI contributions are the result
4 | Copyright Registration Guidance: Works Containing Material Generated by Articial Intelligence
of “mechanical reproduction” or instead of an author’s “own original mental conception,
to which [the author] gave visible form.”
24
The answer will depend on the circumstances,
particularly how the AI tool operates and how it was used to create the nal work.
25
This
is necessarily a case-by-case inquiry.
If a work’s traditional elements of authorship were produced by a machine, the work lacks
human authorship and the Oce will not register it
26
For example, when an AI technology
receives solely a prompt
27
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. Based on the Oce’s understanding of the
generative AI technologies currently available, users do not exercise ultimate creative
control over how such systems interpret prompts and generate material. Instead, these
prompts function more like instructions 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.
28
For example, if a user instructs a text-generating technology
to “write a poem about copyright law in the style of William Shakespeare,” she can expect
the system to generate text that is recognizable as a poem, mentions copyright, and
resembles Shakespeare’s style.
29
But the technology will decide the rhyming pattern, the
words in each line, and the structure of the text.
30
When an AI technology determines
the expressive elements of its output, the generated material is not the product of
human authorship.
31
As a result, that material is not protected by copyright and must be
disclaimed in a registration application.
32
In other cases, however, a work containing AI-generated material will also contain
sucient human authorship to support a copyright claim. For example, a human may
select or arrange AI-generated material in a suciently creative way that “the resulting
work as a whole constitutes an original work of authorship.”
33
Or an artist may modify
material originally generated by AI technology to such a degree that the modications
meet the standard for copyright protection.
34
In these cases, copyright will only protect
the human-authored aspects of the work, which are “independent of ” and do “not aect”
the copyright status of the AI-generated material itself.
35
This policy does not mean that technological tools cannot be part of the creative process.
Authors have long used such tools to create their works or to recast, transform, or adapt
their expressive authorship. For example, a visual artist who uses Adobe Photoshop to edit
an image remains the author of the modied image,
36
and a musical artist may use eects
such as guitar pedals when creating a sound recording. In each case, what matters is the
extent to which the human had creative control over the work’s expression and “actually
formed” the traditional elements of authorship.
37
IV. Guidance for Copyright Applicants
Consistent with the Oce’s policies described above, applicants have a duty to disclose
the inclusion of AI-generated content in a work submitted for registration and to provide
a brief explanation of the human author’s contributions to the work. As contemplated
5 | Copyright Registration Guidance: Works Containing Material Generated by Articial Intelligence
by the Copyright Act, such disclosures are “information regarded by the Register of
Copyrights as bearing upon the preparation or identication of the work or the existence,
ownership, or duration of the copyright.”
38
A. How To Submit Applications for Works Containing AI-Generated Material
Individuals who use AI technology in creating a work may claim copyright protection
for their own contributions to that work. They must use the Standard Application,
39
and in it identify the author(s) and provide a brief statement in the “Author Created”
eld that describes the authorship that was contributed by a human. For example, an
applicant who incorporates AI-generated text into a larger textual work should claim the
portions of the textual work that is human-authored. And an applicant who creatively
arranges the human and non-human content within a work should ll out the “Author
Created” eld to claim: “Selection, coordination, and arrangement of [describe human-
authored content] created by the author and [describe AI content] generated by articial
intelligence.” Applicants should not list an AI technology or the company that provided it
as an author or co-author simply because they used it when creating their work.
AI-generated content that is more than de minimis should be explicitly excluded from the
application.
40
This may be done in the “Limitation of the Claim” section in the “Other” eld,
under the “Material Excluded” heading. Applicants should provide a brief description of the
AI-generated content, such as by entering “[description of content] generated by articial
intelligence.” Applicants may also provide additional information in the “Note to CO” eld
in the Standard Application.
Applicants who are unsure of how to ll out the application may simply provide a
general statement that a work contains AI-generated material. The Oce will contact the
applicant when the claim is reviewed and determine how to proceed. In some cases, the
use of an AI tool will not raise questions about human authorship, and the Oce will
explain that nothing needs to be disclaimed on the application.
B. How To Correct a Previously Submitted or Pending Application
Applicants who have already submitted applications for works containing AI-generated
material should check that the information provided to the Oce adequately disclosed
that material. If not, they should take steps to correct their information so that the
registration remains eective.
For applications currently pending before the Oce, applicants should contact the
Copyright Oce’s Public Information Oce and report that their application omitted the
fact that the work contained AI-generated material.
41
Sta will add a note to the record, which the examiner will see when reviewing the claim.
If necessary, the examiner then will correspond with the applicant to obtain additional
information about the nature of the human authorship included in the work.
6 | Copyright Registration Guidance: Works Containing Material Generated by Articial Intelligence
For applications that have already been processed and resulted in a registration, the
applicant should correct the public record by submitting a supplementary registration.
A supplementary registration is a special type of registration that may be used “to
correct an error in a copyright registration or to amplify the information given in a
registration.”
42
In the supplementary registration, the applicant should describe the
original material that the human author contributed in the “Author Created” eld,
disclaim the AI-generated material in the “Material Excluded/Other” eld, and
complete the “New Material Added/Other” eld. As long as there is sucient human
authorship, the Oce will issue a new supplementary registration certicate with a
disclaimer addressing the AI-generated material.
43
Applicants who fail to update the public record aer obtaining a registration for
material generated by AI risk losing the benets of the registration. If the Oce
becomes aware that information essential to its evaluation of registrability “has been
omitted entirely from the application or is questionable,” it may take steps to cancel
the registration.
44
Separately, a court may disregard a registration in an infringement
action pursuant to section 411(b) of the Copyright Act if it concludes that the
applicant knowingly provided the Oce with inaccurate information, and the accurate
information would have resulted in the refusal of the registration.
45
V. Conclusion
This policy statement sets out the Oce’s approach to registration of works containing
material generated by AI technology. The Oce continues to monitor new factual and
legal developments involving AI and copyright and may issue additional guidance in the
future related to registration or the other copyright issues implicated by this technology.
DATED: MARCH ,
SHIRA PERLMUTTER, REGISTER OF COPYRIGHTS AND DIRECTOR OF THE U.S. COPYRIGHT OFFICE
FR DOC. FILED ; : AM
7 | Copyright Registration Guidance: Works Containing Material Generated by Articial Intelligence
. See U.S.C. (copyright registration requires delivering deposit, application, and fee
to Copyright Office), (a) (all administrative functions and duties set out in Title are the
responsibility of the Register of Copyrights), (b)() (the Register’s duties include providing
“information and assistance” to Federal agencies and courts on copyright and related matters).
. Norris Indus. v. Int’l Tel. & Tel. Corp., F.d , (th Cir. ). For this reason, courts
credit the Office’s expertise in interpreting the Copyright Act, particularly in the context
of registration. See, e.g., Esquire, Inc. v. Ringer, F.d , – (D.C. Cir. ) (giving
“considerable weight” to the Register’s refusal determination); Varsity Brands, Inc. v. Star
Athletica, LLC, F.d , (th Cir. ) (“the Copyright Office’s expertise in identifying
and thinking about the difference between art and function surpasses ours”), aff’d on other
grounds, U.S. ().
. U.S.C. .
. Id. at ().
5. The term “expressive material” is used here to refer to AI output that, if it had been created
by a human, would fall within the subject matter of copyright as defined in section of
the Act. See id. at (a).
. See Prompts, Midjourney, https://docs.midjourney.com/docs/prompts (noting for users of the
artificial intelligence service Midjourney a prompt is “a short text phrase that the Midjourney
[service] uses to produce an image”). To be clear, this policy statement is not limited to AI
technologies that accept text “prompts” or to technologies permitting prompts of a particular
length or complexity.
. U.S. Copyright Office Review Board, Decision Affirming Refusal of Registration of a Recent
Entrance to Paradise at (Feb. , ), https://www.copyright.gov/rulings-filings/review-
board/docs/a-recent-entrance-to-paradise.pdf.
. Id. at –. The Office’s decision is currently being challenged in Thaler v. Perlmutter, Case No.
:–cv– (D.D.C.).
. On the application, the applicant described the work as a “comic book.” See U.S. Copyright
Office, Cancellation Decision re: Zarya of the Dawn (VAu001480196) at (Feb. , ), https://
www.copyright.gov/docs/zarya-of-the-dawn.pdf.
. Id.
. U.S. Const. art. I, sec. , cl. (Congress has the power “[t]o promote the Progress of Science
and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to
their respective Writings and Discoveries.”).
. U.S. , () (explaining that the defendant had argued that photographs were
merely “reproduction on paper of the exact features of some natural object or of some person”).
. Id. at .
. Id. at –.
. Id. at (describing beneficiaries of the Constitution’s Copyright Clause as “authors,” who
are one of “two classes” of “persons”).
. Id. at ; see also id. at – (agreeing with an English decision describing an “author” as
the “person” who was “the cause of the picture which is produced” and “the man” who creates
or gives effect to the idea in the work).
8 | Copyright Registration Guidance: Works Containing Material Generated by Articial Intelligence
. U.S.C. (a).
. Urantia Found. v. Kristen Maaherra, F.d , – (th Cir. ) (internal punctuation
omitted) (holding that “some element of human creativity must have occurred in order for the
Book to be copyrightable” because “it is not creations of divine beings that the copyright laws were
intended to protect”). While the compilation of the book was entitled to copyright, the alleged
“divine messages” were not. Id.
. Naruto v. Slater, F.d , (th Cir. ), decided on other grounds.
. U.S. Copyright Office, Compendium of U.S. Copyright Office Practices sec. ..(I)(a)()(b) (st
ed. ), https://copyright.gov/history/comp/compendium-one.pdf (providing example of shapes
formed by liquid petroleum); see also U.S. Copyright Office, Sixty-Eighth Annual Report of the
Register of Copyrights for the Fiscal Year Ending June 30, 1965, at (), https://www.copyright.
gov/reports/annual/archive/ar-1965.pdf (noting that computer-generated works raise a “crucial
question” of whether the work “is basically one of human authorship”).
. U.S. Copyright Office, Compendium of U.S. Copyright Office Practices sec. .(b) (d ed. ),
https://www.copyright.gov/history/comp/compendium-two.pdf (explaining that as a result, “[m]
aterials produced solely by nature, by plants, or by animals are not copyrightable”). It went on
to state that because “a work must be the product of human authorship,” works “produced by
mechanical processes or random selection without any contribution by a human author are not
registrable.” Id. at .(a).
. U.S. Copyright Office, Compendium of U.S. Copyright Office Practices sec. . (d ed. )
(“Compendium (Third)”).
. Id. (quoting U.S. Copyright Office, Sixty-Eighth Annual Report of the Register of Copyrights for the
Fiscal Year Ending June 30, 1965, at ()).
. Sarony, U.S. at .
. Many technologies are described or marketed as “artificial intelligence,” but not all of them
function the same way for purposes of copyright law. For that reason, this analysis will be fact specific.
. This includes situations where an AI technology is developed such that it generates material
autonomously without human involvement. See U.S. Copyright Office Review Board, Decision
Affirming Refusal of Registration of a Recent Entrance to Paradise at – (Feb. , ), https://www.
copyright.gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf (determining
a work “autonomously created by artificial intelligence without any creative contribution from a
human actor” was “ineligible for registration”).
. While some prompts may be sufficiently creative to be protected by copyright, that does not
mean that material generated from a copyrightable prompt is itself copyrightable.
. One image-generating AI product describes prompts as “influencing” the output but does not
suggest the prompts dictate or control it. See Prompts, Midjourney, https://docs.midjourney.com/
docs/prompts (explaining that short text prompts cause “each word [to have] a more powerful
influence” and that images including in a prompt may “influence the style and content of the
finished result”) (emphasis added).
. AI technologies do not always operate precisely as instructed. For example, a text-generating
tool prompted to provide factual information may provide inaccurate information. One AI service
describes this as the AI “mak[ing] up facts or ‘hallucinat[ing]’ outputs.” ChatGPT General FAQ,
OpenAI, https://help.openai.com/en/articles/ 6783457-chatgpt-general-faq. See also James Romoser,
No, Ruth Bader Ginsburg did not dissent in Obergefell—and other things ChatGPT gets wrong about
the Supreme Court, SCOTUSblog (Jan. , ), https://www.scotusblog.com/2023/01/no-ruth-
bader-ginsburg-did-not-dissent-in-obergefell-and-other-things-chatgpt-gets-wrong-about-the-
supreme-court/.
9 | Copyright Registration Guidance: Works Containing Material Generated by Articial Intelligence
. Some technologies allow users to provide iterative “feedback” by providing additional prompts
to the machine. For example, the user may instruct the AI to revise the generated text to mention
a topic or emphasize a particular point. While such instructions may give a user greater influence
over the output, the AI technology is what determines how to implement those additional
instructions.
. See id. at (quoting British decision by Lord Justice Cotton describing an author as the
person “who has actually formed the picture”).
. See Compendium (Third) sec. . (a copyright registration “does not cover any unclaimable
material that the work may contain,” and applicants “should exclude that material from the
claim”).
. U.S.C. (definition of “compilation”). In the case of a compilation including AI-generated
material, the computer-generated material will not be protected outside of the compilation.
. See Compendium (Third) sec. . (identifying that where a new author modifies a
preexisting work, the “new authorship . . . may be registered, provided that it contains a
sufficient amount of original authorship”); see also U.S.C. (defining “derivative work” to
include works “based upon one or more preexisting works” where modifications to the work
“which, as a whole, represent an original work of authorship”).
. U.S.C. (b).
. To the extent, however, that an artist uses the AI-powered features in Photoshop, the edits will
be subject to the above analysis.
. Sarony, U.S. at .
. U.S.C. ().
. The Office’s other types of application forms do not contain fields where applicants can
disclaim unprotectable material such as AI-generated content. For example, the Single
Application may only be used if “[a]ll of the content appearing in the work” was “created by the
same individual.” CFR .(b)()(i)(B).
. The Office does not require applicants to disclaim “brief quotes, short phrases, and other de
minimis uses” of preexisting works. Compendium (Third) sec. ..
. The Public Information Office can be reached through the Office’s website (https://copyright.
gov/help/) or by phone at () – or () –.
. U.S.C. (d); see also Compendium (Third) sec. (discussing supplementary registration
process); U.S. Copyright Office, Circular 8: Supplementary Registration, https://copyright.gov/circs/
circ08.pdf (last revised Mar. ); CFR .(c)() (fee schedule for supplementary registration).
. Though the supplementary registration certificate will have a new registration number
and effective date of registration, the original registration “will not be expunged,” and the
two effective dates “will coexist with each other in the registration record” so that a court can
determine which date to apply if the copyrighted work is later subject to litigation. CFR
.(f)()–(); U.S. Copyright Office, Circular 8: Supplementary Registration, https://copyright.gov/
circs/circ08.pdf (last revised Mar. ).
. See CFR .(c)(). If the work contains human authorship intermingled with AI-created
material, the Office may add an annotation to clarify the scope of the claim.
. U.S.C. (b)()(A); Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., S. Ct. ,
() (requiring that the applicant “was actually aware of, or willfully blind to” the inaccurate
information).
