China Recognizes Copyrights in AI-Generated Pictures But It Won’t Help Creators in the US.

Last month a Chinese court decided that works generated by AI, in this case Stable Diffusion, were subject to copyright protection in China.  The artist, in this case, analogized creating photographs through AI with creating photographs with vintage cameras. Photographers, of course, have long been considered owners of the copyrights in their photographs despite using a camera (and even the subject matter of the photograph).  The court in China agreed and found that the requirement that a human set parameters for an AI tool mean “an AI-generated image reflects the original intellectual investment of a human being.” Accordingly, the work was subject to copyright protection under Chinese law.

This decision is inconsistent with how copyrights are currently applied to AI-generated works in the United States.  According to the U.S. Copyright Office, 

when an AI technology receives solely a prompt 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.

Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16190, 16192 (March 16, 2023). Since only a human can be considered an “author” under the Copyright statute, the Copyright Office will only issue registrations over works containing AI content in limited circumstances. And even if a registration issues, it will be of limited value.  The Copyright Office gives the following examples:

“[A] human may select or arrange AI-generated material in a sufficiently creative way that ‘the resulting work’ as a whole constitutes an original work of authorship.”

Or 

“[A]n artist may modify material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection.”

Neither of these allows for the protection of an AI-generated work based on the prompts by a human.  

However, the Copyright Office has not ultimately foreclosed the idea that AI technology could lead to a copyrightable work. The Copyright Office guidance published this year indicates “the Office will consider whether the AI contributions are the result of ‘mechanical reproduction’ … instead of an author’s ‘own original mental conception, to which [the author] gave visible form.’’ Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. at 16192.  In other words, some level of human control over an AI system may give rise to a copyrightable work.

Although the U.S. has entered into international treaties to recognize copyrights from foreign countries, those treaties are unlikely to create a loophole to allow copyrights over AI-generated works. The treaties do not guarantee an author with copyrights in China the right to a U.S. copyright. Rather, they may give the author in China the ability to register for a U.S. copyright based on publication of a work in China, but the work will still have to go through the registration process. Under the current scheme of copyright review, works that involve AI-generated material will be rejected or, at best, limited to the changes made by a human after AI generation. 

“Disclaimer: Attorney advertisement. This post is not intended to be legal advice and is simply intended to be informative.