![handle is hein.journals/tsamlw12 and id is 1 raw text is: Volume 12 Texas A&M Law Review Arguendo 2024
ARTIFICIAL INTELLIGENCE, COPYRIGHT REGISTRATION,
AND THE RULE OF DOUBT
by: Thomas B. James
ABSTRACT
Artificial intelligence (AI') technology has detonated an explosive burst of seemingly
creative expression. Stories, images, music, and even entire books are now being generated very
quickly. This development is a major headache for copyright registrars because the
copyrightability of works created in this way is uncertain. The almost limitless variability in the
extent of human involvement in the creation of a work using an AI tool compounds the uncertainty.
In some cases, copyrightability is easy to determine, such as where an author only claims rights
in the selection and arrangement of AI-generated output rather than the output itself But in many
cases the registrability of a work created with the aid of an AI technology is far from certain. In
these situations, the Copyright Office should apply a rule of doubt to allow registration. This
solution appears to be a novel idea, at least as a permanent solution to the problems AI has
generated. Nevertheless, approaching the problem in this way would protect authors'rights to any
original contributions they make to AI-assisted works, authors' interests in the privacy of their
creative processes, the interests of authors whose works may have been used without their consent
to train AI, and the ability of alleged infringers to challenge the existence and scope of claimed
copyrights in AI-generated and AI-assisted works. It would also ease the burden on copyright
examiners.
I. INTRODUCTION
Generative artificial intelligence (Al) is a type of artificial intelligence technology that is
capable of producing kinds of expression (stories, images, music, etc.) that could qualify for
copyright protection if created by a human.1 A generative Al system is trained on existing human-
created works, operating through pattern recognition.2 It may be programmed to respond to
commands (prompts) that are entered into a computer by a human user.3
The United States Copyright Office (the Office) has been receiving applications to register
copyrights in material generated by or with the aid of one or more generative Al tools.4 The Office
has been refusing to register these materials on the basis that AI-generated output is produced by
DOI: https://doi.org/10.37419/LR.V12.Arg.2
1 See 17 U.S.C. § 102; Micaela Mantegna, ARTificial: Why Copyright Is Not the Right Policy Tool to Deal
with Generative AI, 133 YALE L.J.F. 1126, 1148 (2024) (suggesting that we might already have reached a tipping
point where we can no longer tell the difference between human- and machine-made works). AI-generated works
have even garnered prizes in art competitions. See, e.g., Anna Lynn Winfrey, 'Someone Had to Be First': Pueblo Artist
Criticized After Al Painting Wins at Colorado State Fair, PUEBLO CHIEFTAIN (Aug. 31, 2022),
https://www.chieftain.com/stoiy/news/2022/08/31/ai-painting-wins-at-colorado-state-fair-pueblo-artist-explains-
jason-allen/65466872007/ [https://penna.cc/4SJX-DAQ5].
2 Nina Brown, Bots Behaving Badly: A Products Liability Approach to Chatbot-Generated Defamation, 3 J.
FREE SPEECH L. 389, 394 (2023).
3Id. at 390.
4 Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed.
Reg. 16190, 16191 (March 16, 2023), [hereinafter Copyright Registration Guidance].
1](ViewImageLocal?handle=hein.journals/tsamlw12&div=1&collection=&method=preview&ext=.png&size=3)
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