Copyright, AI and YOU

As an Established Content Creator or Business Professional creating content on your favorite Social Media platform, a serious question of copyright has reared its head due to the advent of publicly available AI potentially being used in that content.

In the past, copyright has been pretty well defined.   But it has gone through some rocky times as technology has advanced over the years.

For example, in 1884, the then new technology of the camera was brought into question in the Burrow-Giles Lithographic Co. vs. Sarony case brought before the U.S. Supreme Court.   Napoleon Sarony, the plaintiff, successfully sued the lithography company for reproducing his famous photograph titled “Oscar Wilde No. 18” without permission.

The significance of this case was the setting of precedent that photographs are “writings” and that photographers qualify as “Authors” when they exercise creative control over the final image.

One of the key points about this is the defining of an "Author" as “he to whom anything owes its origin;originator; maker; one whom completes a work of science or literature”.

The other key point defined was what copyright actually is, “the exclusive right of a man to the production of his own genius or intellect”.

AI in the form of modern Large Language Models which became publicly available in 2022, are now the new technology on the block, the same way photography was in the late 1800’s

Unlike how a camera works where you can set up a shot and be able to, for the most part, take repeated images that are identical to each other, The AI Large Language Models are making interpretive choices that subtly change every time the same prompt is executed.

This single fact, in my opinion, is the crux of the issue for copyrighting any AI generated content… regardless of how detailed and explicit of a prompt you as a human may give it, allowing the AI to generate writings, audio or video out of whole cloth does not fulfil the expressed intent and spirit of the U.S. Copyright Office and its policies.

To sum all this up, according to MANATT.com, the U.S. Copyright Office has generated a report on January 2025, with input from the public through the N.O.I. (Notice of Inquiry).   Here is their current stance on this topic… 

#1 Human Authorship is Required

“The report reaffirms the traditional principle that copyright law only protects works created by humans.”... “The USCO’s report reaffirms the position that, while AI can assist in human creativity, it cannot replace it to qualify for copyright protection.”... “If AI is used to autonomously generate a creative work without significant human involvement, it is not copyrightable”

#2 AI Generated Content Based on Text Prompts is not Copyrightable

“The USCO concluded that even if a prompt is extremely detailed or complex, it does not confer copyright ownership over an AI-generated output. The report reasoned that the prompts are basically instructions rather than expressions of creativity.  While a prompt may describe an idea, the AI system ultimately determines the execution of the creative elements in ways that are not fully controlled by the user.”

#3 Case by Case Approach

“The USCO suggests that copyright protection may apply to AI-generated works if a human edits, arranges, or selects AI-generated content in a sufficiently creative way, incorporates AI-generated elements into a larger human-authored work, or modifies AI-generated content in a way that adds original creative expression. It is important to note that each case will be assessed individually to determine whether the human input is significant enough to qualify for copyright protection.”

Here are the links to the reference material…

Copyright Office Reports

MANATT Article

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Until the next installment...

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