Appreciable or De Minimis: That Is the AI Question

As AI-generated materials are becoming more commonplace in creative works across the media landscape, content creators and distributors are seeking guidance on what information needs to be disclosed to the United States Copyright Office in order to register their works and the potential penalties for failing to do so. Davis Wright Tremaine has been monitoring recent developments, documenting how courts and the Copyright Office are approaching the intersection of copyright and artificial intelligence.

Earlier this year, the Copyright Office issued registration guidance on works containing AI-generated material. Among other things, that guidance explains that "[i]f a work's traditional elements of authorship were produced by a machine, the work lacks human authorship and the Copyright Office will not register it." Applicants seeking copyright registration have a duty to disclose if there is an "appreciable" amount of AI-generated content in their work and disclaim those elements of the work, which will then be excluded from the registration. But if the AI-generated content is only a "de minimis" contribution to the work, it does not need to be disclosed and will not be excluded from the registration. The Copyright Office does not require applicants to disclaim brief quotes, short phrases, and other de minimis uses in their registration but has not yet provided formal guidance on what qualifies as "de minimis" and what qualifies as "appreciable."

Determining Whether an AI Contribution Is 'Appreciable' or 'De Minimis'

On June 28, 2023, the Copyright Office held an online webinar regarding the registration process for works with AI-generated content. Among other things, the webinar addressed what kind of content the Copyright Office might consider a de minimis use such that it does not need to be disclosed.

To determine whether disclosure is necessary, the Copyright Office instructs applicants to answer the following question:

Would the AI-generated material, standing on its own, be copyrightable if it had been created by a human author?

If so, then a brief statement disclosing the material must be included in the copyright application, and the AI-generated material will be excluded from registration. However, if the work does not contain a sufficient amount of creativity to support a copyright, there is no need to disclose it, and it is not disclaimed.

According to the Copyright Office, the easiest way for applicants to avoid all disclosure considerations is by first registering their human authorship prior to incorporating, combining, or changing it with the AI-generated content. So, for example, if one writes a script in Spanish and uses AI to translate it into English, registering the human-authored Spanish version rather than the AI-translated English version would avoid disclosure requirements. This option, obviously, is not always available as it depends on the work and AI contribution.

Examples of Appreciable and De Minimis AI Contributions

The Copyright Office also has provided examples of appreciable and de minimis contributions to aid applicants in determining whether the AI contributions need to be disclosed. Because these are unofficial examples disclosed during its June webinar, they are not currently codified in any Office regulations. However, they provide helpful guidance to understand what needs to be disclosed as an appreciable contribution and what would be deemed a de minimis contribution and not disclosed.

• Appreciable contributions that generally need to be disclosed include:
  • Using AI to create background elements;
  • Using AI to generate text (if that text is copyrightable on its own);
  • Using AI to generate translations from one language of a copyrightable work to another;
  • Using AI to generate illustrations.
• De minimis contributions that generally do not need to be disclosed include:
  • Using AI to generate ideas to later create a work;         
  • Using AI to sharpen an image;
  • Using AI to check spelling, grammar, insert page numbers, generate table of contents, format headings, captions, and text;
  • Using AI for names, short phrases, and titles.

The Copyright Office has also given a few examples of disclosures requirements relating to the filmmaking process:

• De minimis: Using AI to blur the faces, license plates, and other personally identifiable information.
• De minimis: Using AI during post-production to duplicate a minor edit across frames.
• De minimis: Using AI to generate a high-level storyline if it is high level enough to constitute an idea, which is unprotectable.
• Appreciable: Using AI to create backgrounds where the background would be considered an independently copyrightable part of the motion picture.
• Appreciable: Using AI to produce special effects where the effects would be considered an independently copyrightable part of the motion picture.

Reporting AI-Generated Content That Is More Than De Minimis

When submitting an application to the Copyright Office for works containing AI-generated material, the applicant should disclaim the AI-generated material in the "Limitations of the Claim" section in the "Other" field, under the "Material Excluded" heading. Applicants are presently only required to provide a brief description of the AI-generated content, such as "Photos generated by artificial intelligence" or "Some AI generated artwork." When submitting a deposit along with the registration, the entire work should still be provided to the Copyright Office, and the applicant does not need to remove AI-generated materials from the submission.

The Copyright Office has informed applicants who have already submitted applications for works containing AI-generated material to check whether the information they provided to the Copyright Office is accurate, and if not, they should take steps to correct their application, including by filing a supplemental registration. This includes registrations that are currently pending. For disclosures filed prior to the Copyright Office's March 16, 2023, guidance, the failure to disclose likely will not be considered a knowing inaccuracy causing the registration certificate to be invalidated, and the Copyright Office has stated that they are not initiating cancellations for registrations before this date.

Risks Associated With Failing To Report AI-Generated Content That Is More Than De Minimis

Although the failure to report AI-generated content that is more than de minimis as part of a registration application will likely be evaluated on a case-by-case basis, it will be important for content creators to make determinations about what is appreciable and what is de minimis. While courts have not yet interpreted the Copyright Office's guidance, under 37 C.F.R. § 201.7(c)(4), if the Copyright Office becomes aware that an issued registration does not satisfy the statutory requirements for copyright "or that information essential to registration has been omitted entirely from the application or is questionable," the Copyright Office will correspond with the copyright claimant "in an attempt to secure the required information . . . or to clarify the information previously given on the application." If the claimant does not reply in 30 days, the Copyright Office will cancel the registration. Id. Recently, the Copyright Office has canceled at least one copyright registration certificate based on an author's failure to disclose AI-generated content (images) in its application, although it reissued the registration certificate bearing the original effective date "covering only the expressive material that [the human author] created." In an interesting part of the cancellation, the Copyright Office "became aware of statements on social media attributed to [the human author] that she had created the comic book using Midjourney artificial intelligence" which prompted the Copyright Office's inquiry.

It is not clear how courts will handle situations in which a defendant asserts that a plaintiff's copyright registration is invalid due to undisclosed AI contributions. Nonetheless – and consistent with a past Copyright Office decision upheld by a federal district court in Washington, D.C., earlier this year – cancellation can have serious impacts on content creators' ability to fully protect their creative works. For example, a void registration may prevent a content creator from filing suit to enforce their rights or may preclude recovery of statutory damages and attorney's fees under the Copyright Act for the unauthorized use of their work.

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DWT will continue to provide updates regarding these and other issues in AI. If you have questions about the copyrightability or registrability of content using AI-generated materials, please contact the authors.