Can You Copyright AI-Generated Content?
As of July 2023, the answer to the question of whether AI-generated content is copyrightable isn’t quite straightforward. My lawyer friends and SEO friends alike will appreciate the best answer I can give you right now: It depends.
What’s clear is that you can’t copyright all the content you create using generative AI tools. You may get protection for some of it, however, thanks to recent public guidance released by the US Copyright Office.
We’re going to cover a lot of ground together in this article. Here’s a short table of contents for you to help navigate to the parts you’re most interested in.
The Short Answer: It Depends
If you want to copyright AI-generated content, keep these two general rules in mind:
- Any AI-generated content you publish that received little to no creative input from you is not copyrightable.
- If your AI-assisted content involves sections where you can prove sufficient human authorship, those sections that were created or modified by you can be protected. The remaining AI-created content can’t get protection.
To better understand this, we’ll need to review the law and current legal landscape in a bit more detail. Before I do that, though, I must first say this:
I’m no longer a practicing attorney. Nothing I share here is meant to be nor should be construed as legal advice. If you want to know whether you can copyright a piece of work you’ve created with the assistance of generative AI, I highly recommend you reach out to an intellectual property attorney.
Okay, with that disclaimer in place, let’s dive in.
What Makes Something Copyrightable?
Under US copyright law, specifically 17 U.S.C. § 102(a), “original works of authorship” can receive copyright protection if they are:
[F]ixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
To put this in a way that is easier to understand, the Copyright Office shared the following questions it considers when determining whether a work is copyrightable:
- Is the work eligible for copyright protection in the United States?
- Has the work been fixed in a tangible medium of expression?
- Was the work created by a human author?
- Does the work constitute copyrightable subject matter?
- Is the work sufficiently original?
- Was the work independently created?
- Does the work possess at least some minimal degree of creativity?”
If you can answer “yes” to all of these questions, the work is most likely copyrightable and can be registered with the US Copyright Office.
When it comes to a business’s marketing materials, pieces of work commonly sought out for copyright include website content, blog copy, article copy, and ebooks and white papers, among others. These works also happen to be those that many businesses and marketers have turned to AI to help create.
This then begs the following questions: “How does copyright law apply to works that were completely AI generated? And what about works that involve both human-created and AI-generated content?”
How Copyright Law Currently Handles AI-Generated Content
When it comes to copyrighting AI-generated content, the Copyright Office focuses on the element of human authorship. In considering works created using AI technology, the Compendium of US Copyright Office Practices states:
The crucial question is “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.”
The Human Authorship Requirement in Action
Let’s briefly look at a couple of situations that have helped clarify this human authorship aspect in AI content generation.
Prompts: If You Prompt It, Does It Count?
The Copyright Office addresses prompts head-on in its recent guidance:
[W]hen 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.
This is because humans don’t “exercise ultimate creative control over how such systems interpret prompts and generate material.”
Even in the case where a prompt is “sufficiently creative to be protected by copyright,” the Copyright Office still holds that the generated content isn’t necessarily copyrightable. Each item must be reviewed on a case-by-case basis.
AI Image Generation: Copyright Office Decision, Zarya of the Dawn
Looking past the prompt, let’s turn our attention to how the Copyright Office handles work that involves both copyrightable and non-copyrightable content.
In a claim involving the graphic novel, Zarya of the Dawn, the creator was granted copyright protection by the US Copyright Office for the text of her graphic novel, as well as the “selection, coordination, and arrangement of the Work’s written and visual elements.” She was not, however, granted copyright for the individual images in the graphic novel, as they were created using Midjourney, an AI image generator.
Copyright Laws on AI-Generated Content Are in Progress
Copyright laws and guidance on generative AI are still in development. This is unsurprising, as AI is rapidly growing and expanding its capabilities.
Moreover, there are numerous lawsuits involving generative AI in progress right now. These cases allege that generative AI tools have infringed copyrights to train their databases and, separately, that the companies violated individuals’ privacy rights to train their tools.
Any one of these cases can have an immense impact on how copyright protection applies in this arena in the future. The best thing we can do for our companies and those we serve is to remain as up-to-date as possible on the topic.
Why Copyright Matters
When it comes to your online marketing efforts, having a third party infringe on your copyrightable materials can negatively impact your earnings, search rankings, reputation and more. You want to do everything you can to protect what is rightfully yours, from your website code to the content on your home page and beyond.
Owning a copyright on a work gives you exclusive rights to use that work. Specifically, copyright brings with it the ability to legally:
- Monetize your content
- Copy and redistribute your content
- Make derivative works on your creation
- Publicly display your work
- Seek legal recourse in the event of copyright infringement
To be clear, having copyright protection doesn’t mean folks can’t or won’t steal your work. But it does give you the power to be able to send cease and desist letters or file a lawsuit in court. It means you have the right to demand the infringer pay you license rights or the right to recover damages for the infringement if it caused you financial harm.
Should You Use AI-Generated Content in Your Marketing Efforts?
I’m not here to tell you what you should or shouldn’t do when it comes to using AI to create your marketing content. Instead, I’m here to help you understand the implications of using AI content generators so you can make an informed decision on how to use this evolving technology in your business.
The Limitations of AI Content Generators
The narrower access to copyright protection is one of several limitations that arise when using AI content generators. Here are several others, which we believe still hold true and are also listed in our stance and policy on generative AI:
- Context & tone: AI doesn’t understand context or tone, human nuances that require our complex brains to take in everything around us, not just the words on the page. Can you prompt AI with certain tone requests? Absolutely! But you’ll need to spend a great deal of time finessing what it generates to make it sound like you and make it connect with your reader.
- Accuracy & reliability: AI often “hallucinates,” creating seemingly factual data out of thin air. A prime example: The lawyer who wrote his court brief using ChatGPT only to learn too late that the case law cited by ChatGPT was made up. You can’t rely on these tools or even the data it’s trained on.
- Bias & cultural sensitivity: Speaking of training, the models that tools like ChatGPT have been built on use already-existing data across the web, which is inherently biased and discriminatory. Moreover, AI can’t account for cultural differences or create culturally inclusive content.
- Emotional intelligence: Empathy drives connection. Emotions drive action. And while you can prompt AI to focus on certain emotions, AI can’t understand them or how to speak to them to drive engagement.
The Benefits of Using AI to Write Marketing Content
I know it may sound like I’m wholly against the use of generative AI. I can promise you, I’m not. There are myriad ways to use these new AI technologies to our benefit. Here are a handful of my favorite ways to use AI tools:
- Topic brainstorming
- Keyword research
- Content brief creation
- Outlining
- Grammar and spelling checks
When it comes to being more efficient with time, breaking out of writer’s block or creating more thorough pieces of content that offer greater value, generative AI tools are hard to beat!
Speaking of which, yes, I used an AI tool to help with the outline for this piece. It helped me organize my thoughts and add in a few topics I hadn’t originally considered before getting started. I’ve also rearranged this piece, scrapped a few items and added a few new ones as I’ve been writing. It was like an icebreaker for me—it gave me focus to get started and then my brain ran with it and made the piece my own.
Do What Makes Most Sense for Your Business
From topic brainstorming to full article creation and beyond, the uses for generative AI are many. So the question isn’t exactly, “Should you use AI?” It’s more, “HOW should you use AI?” These tools aren’t going away, and they’re honestly just getting better with time.
What matters here is for you to know which uses align with your business goals and values. The next step is to share what you decide with your marketing team so everyone is on the same page.
What’s Your Marketing Agency’s Stance on Generative AI?
Have you talked with your marketing agency about how they’ll be using generative AI in the services they provide to you? Have you been clear with your agency on what you do and don’t want to see concerning how AI is used on your behalf?
I highly recommend that, no matter where you are on the spectrum of whether you will or will not use AI-generated content in your marketing materials, you take the following steps:
- Ask to see your agency’s generative AI policy. If they don’t have one, ask them to put some guidelines down in writing and then come to an agreement.
- Determine how much AI content generation you’re comfortable with. If you care about obtaining copyright for all your materials, then identify clearly which areas your agency can use AI (and how) and which areas are completely off-limits.
- Run content you get from your agency through an AI content detector. Listen, we know AI detectors aren’t perfect. We also know that there are folks out there who proudly claim they’ve learned how to beat those detectors. Decide what matters to you and then make sure to QA the work you get to ensure it aligns with your goals and expectations.
So, Who Owns the Copyright on AI-Generated Content? It Depends.
If you’re comfortable publishing marketing content created using AI tools like ChatGPT, and you want to know what you can and can’t copyright, here’s your recap:
- You can seek copyright protection for the parts of AI-assisted content that you can prove you’ve modified in a sufficiently creative way.
- You can’t copyright AI-generated content that has little to no human authorship by you.
- Indeed, no one can own the copyright of AI-generated content that lacks human authorship. This content is fair game for anyone to use.
If you’d rather get custom content delivered to you that is AI-free, so you can own the copyright and gain all the rights and protections that come with it, reach out to us at Custom Content Solutions. Our Word Nerds are here to help you stand out from the crowd. Contact us today.
