U.S. Copyright Office Grants Registration to AI-Generated Artwork

Written by Alec Winshel.

The Copyright Office issued a determination that a piece of artwork created with AI contained sufficient human authorship to support a copyright registration and, in doing so, has shed greater light on how potential applicants can gain copyright registration while using AI in their future work. 

The United States Copyright Office has resisted efforts by artists seeking a copyright in works created with the substantial involvement of artificial intelligence (AI) tools. The Copyright Office denied registration in 2023 to prize-winning artwork created using interactive prompting within the popular program Midjourney. Subsequently, it awarded only limited copyright registration to a graphic novel that used images created by the same AI tool. While it granted registration to the human-authored text of that comic and the overall “selection, coordination, and arraignment” of components, it denied registration to the AI-generated images themselves. The operative principle is becoming clear: there can be no copyright registration for artwork generated by artificial intelligence because it lacks human authorship, but the arrangement of AI-generated media can be copyright-able as a “compilation.” Last month, a determination by the Copyright Office revealed how that standard will be put into practice. 

In February, the Copyright Office accepted an application for copyright registration in an artwork titled A Single Piece of American Cheese. The registration is as much a legal development as it is advertisement: Kent Keirsey filed the application for artwork created using the AI-powered program Invoke, which is owned by a company that he founded and currently works for as CEO. The suggestion that an artist can receive legal protections for their work created with an AI program is a powerful commercial message to potential users of the program. By successfully registering a copyright, Keirsey suggests to customers that works created using his AI program will be entitled to legal protections. The state of play, however, remains complicated.

The Copyright Office has issued public guidance as it navigates the proliferation of AI-generated works. It emphasizes that works created with AI require “fact-specific consideration of the work and the circumstances of its creation” when considering an application for copyright registration. For works created entirely by AI, there can be no copyright. For human-authored works supplemented with AI assistance in the “creative process,” a copyright claim will likely succeed.

A Single Piece of American Cheese sits between those contrasting poles: the initial image was created entirely by the AI program based on a brief text prompt, then the user repeatedly selected elements of the image and used additional prompts to add/alter elements. This process–called “inpainting” by the applicant–resulted in non-trivial changes to the original image. However, each new or modified element was merely a creation of the AI system based on user prompting. The entire creation process can be watched here for those curious to see the AI program in use. 

After initially denying the copyright claim, the Copyright Office reconsidered its decision and wrote to Keirsey that it “decided to register a copyright claim in [the] work because we find that it contains a sufficient amount of human original authorship in the selection, arrangement, and coordination of the AI-generated material that may be regarded as copyrightable.” In its letter, the Copyright Office referenced the application’s argument that A Single Piece of American Cheese is akin to a collage, where the artist has carefully compiled elements created by others to generate original art. Whether similar artwork reaches the requisite threshold of originality, explained the Copyright Office, will “depend on a case-by-case determination.” 

This determination is notable, then, because it begins to clarify the line that applicants must cross when seeking copyright registration for AI-generated compilations. The Copyright Office has not announced any sweeping new interpretations of the relationship between copyright and artificial intelligence in granting this registration, but it has offered valuable insight into how it will apply its own standards. 

The first implication is that documentary proof of human creativity is valuable for applicants. In its letter, the Copyright Office described that it reviewed the video showing in full the graphic interface that Keirsey used, including his selection of component parts and his revised prompts. The video created an evidentiary record of the human input that led to the final image. 

The second implication is that the amount of arrangement and reconfiguration of AI-generated elements is not an especially high bar. The Copyright Office might have approached the question of arrangement as a matter of degree: the greater the difference between an original image and the ultimate compilation, the greater the evidence of human authorship in creating the final product. Here, however, the final image is not markedly different from the original AI output. The total time spent creating the final image was not remarkable. It appears that, even if compilation can be understood as a spectrum of work, the threshold required for registration is not high. 

The successful registration of A Single Piece of American Cheese may invite new applications from artists utilizing AI tools, and the Copyright Office’s responses will continue to shed greater light on precisely what sorts of relationships between authors and AI will qualify for copyright registration. The ultimate test for this emergent area of copyright, however, may not develop until courts begin to address claims of copyright infringement filed by authors like Keirsey. The strength of the legal protection granted to AI-generated artwork by copyright will be fully tested only after courts are asked to adjudicate claims of infringement. Those cases will reveal what it means to claim ownership in the selection and arrangement of AI-generated media without owning the underlying images. It remains to be seen what courts will make of AI-generated artwork’s legal sword once it’s finally unsheathed.