U.S. Copyright Office Imposes Duty to Disclose AI-Generated Content and Recommends Actions to Fulfill that Duty

On March 16, 2023, the United States Copyright Office (USCO) published new guidelines in the Federal Register titled "Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence" (the Guidelines).

The USCO issued the Guidelines responsive to having received applications to register works generated at least in part by artificial intelligence (AI), and to having realized that "public guidance is needed on the registration of works containing AI-generated content." Developments cited by the USCO included a recent case handled by Taylor English partner Van Lindberg, involving the work Zarya of the Dawn.

The Guidelines announce that "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." (emphasis added). The Guidelines describe actions to take in the preparation of new applications, for pending applications, and for registrations that have already issued, if AI at least partially generated the work. The below items provide the highlights.

Preparation of New Applications

1. Identify in the "Author Created" field the subject matter that was created 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."
2. Applicants should not name a specific AI technology or the company that provided it as an author. This is in keeping with the USCO's reaffirmed policy of not recognizing an AI platform as an "author" of copyrightable subject matter.
3. Any AI-generated content "that is more than de minimis should be explicitly excluded from the application." This can be done by providing information under the "Material Excluded" heading in the "Limitation of Claim" section of the application. There, the applicant "should provide a brief description of the AI-generated content, such as by entering '[description of content] generated by artificial intelligence.'" 
   • The applicant can also provide additional information in the "Note to CO" field of a standard registration application.
   • Though not expressly stated in the Guidelines, the applicant should consider identifying the specific AI technology used, because the Guidelines elsewhere state: "In the case of works containing AI-generated material, the [USCO] will consider whether the AI contributions are the result of 'mechanical reproduction' or instead of an author's 'own original mental conception, to which [the author] gave viable form." The USCO adds: "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."
4. If an applicant is unsure how to complete the application, the applicant can "simply provide a statement that a work contains AI-generated material," and after the applicant files the application, the USCO will contact the applicant to determine how to proceed.

Correction of Pending Applications - Applicants should contact the USCO's Public Information Office, at either the linked site or by phone at (202) 707-3000 or (877) 476-0778, to "report that their application omitted the fact that the work contained AI-generated material."

If Registration Already Issued, File Application for a Supplementary Registration 

1. "For applications that have already been processed and resulted in a registration, the applicant should correct the public record by submitting a supplementary registration."
2. The USCO provides basic information at its "About Supplementary Registration" web page. Additional information can be found in the USCO's "Circular 8," easily located via Google.
3. In this type of application, the applicant should provide the same type of information in the "Author Created" field described at No. 1 above for new applications.
4. In the "Material Excluded/Other" field, the applicant must disclaim the AI-generated material.
5. Applicant must complete the "New Material Added/Other" field.
6. "As long as there is sufficient human authorship, the [USCO] will issue a new supplementary registration certificate with a disclaimer addressing the AI-generated material."
7. If a registration covering a work that was at least partially generated by AI technology is not corrected with a supplementary registration, one of the following consequences may occur:
   • The USCO may cancel the registration if it becomes aware of the omission.
   • In litigation, a court may disregard the registration pursuant to § 411(b) of the Copyright Act. Since, subject to narrow exceptions, a valid registration is a prerequisite for bringing a copyright infringement action, such a disregarding of the registration would usually result in dismissal of the infringement action.

If a copyright owner is still unsure how to comply with the USCO's newly imposed duty of disclosure for AI-generated works, the owner should consult with knowledgeable copyright counsel.