[Federal Register Volume 88, Number 51 (Thursday, March 16, 2023)]
[Rules and Regulations]
[Pages 16190-16194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05321]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 202


Copyright Registration Guidance: Works Containing Material 
Generated by Artificial Intelligence

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Statement of policy.

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SUMMARY: The Copyright Office issues this statement of policy to 
clarify its practices for examining and registering works that contain 
material generated by the use of artificial intelligence technology.

DATES: This statement of policy is effective March 16, 2023.

FOR FURTHER INFORMATION CONTACT: Rhea Efthimiadis, Assistant to the 
General Counsel, by email at [email protected] or telephone at 202-
707-8350.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Copyright Office (the ``Office'') is the Federal agency tasked 
with administering the copyright registration system, as well as 
advising Congress, other agencies, and the Federal judiciary on 
copyright and related matters.\1\ Because the Office has overseen 
copyright registration since its origins in 1870, it has developed 
substantial experience and expertise regarding ``the distinction 
between copyrightable and noncopyrightable works.'' \2\ The Office

[[Page 16191]]

is empowered by the Copyright Act to establish the application used by 
applicants seeking registration of their copyrighted works.\3\ While 
the Act identifies certain minimum requirements, the Register may 
determine that additional information is necessary for the Office to 
evaluate the ``existence, ownership, or duration of the copyright.'' 
\4\ Because the Office receives roughly half a million applications for 
registration each year, it sees new trends in registration activity 
that may require modifying or expanding the information required to be 
disclosed on an application.
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    \1\ See 17 U.S.C. 408 (copyright registration requires 
delivering deposit, application, and fee to Copyright Office), 
701(a) (all administrative functions and duties set out in Title 17 
are the responsibility of the Register of Copyrights), 701(b)(2) 
(the Register's duties include providing ``information and 
assistance'' to Federal agencies and courts on copyright and related 
matters).
    \2\ Norris Indus. v. Int'l Tel. & Tel. Corp., 696 F.2d 918, 922 
(11th Cir. 1983). For this reason, courts credit the Office's 
expertise in interpreting the Copyright Act, particularly in the 
context of registration. See, e.g., Esquire, Inc. v. Ringer, 591 
F.2d 796, 801-02 (D.C. Cir. 1978) (giving ``considerable weight'' to 
the Register's refusal determination); Varsity Brands, Inc. v. Star 
Athletica, LLC, 799 F.3d 468, 480 (6th Cir. 2015) (``the Copyright 
Office's expertise in identifying and thinking about the difference 
between art and function surpasses ours''), aff'd on other grounds, 
580 U.S. 405 (2017).
    \3\ 17 U.S.C. 409.
    \4\ Id. at 409(10).
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    One such recent development is the use of sophisticated artificial 
intelligence (``AI'') technologies capable of producing expressive 
material.\5\ These technologies ``train'' on vast quantities of 
preexisting human-authored works and use inferences from that training 
to generate new content. Some systems operate in response to a user's 
textual instruction, called a ``prompt.'' \6\ The resulting output may 
be textual, visual, or audio, and is determined by the AI based on its 
design and the material it has been trained on. These technologies, 
often described as ``generative AI,'' raise questions about whether the 
material they produce is protected by copyright, whether works 
consisting of both human-authored and AI-generated material may be 
registered, and what information should be provided to the Office by 
applicants seeking to register them.
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    \5\ The term ``expressive material'' is used here to refer to AI 
output that, if it had been created by a human, would fall within 
the subject matter of copyright as defined in section 102 of the 
Act. See id. at 102(a).
    \6\ See Prompts, Midjourney, https://docs.midjourney.com/docs/prompts (noting for users of the artificial intelligence service 
Midjourney a prompt is ``a short text phrase that the Midjourney 
[service] uses to produce an image''). To be clear, this policy 
statement is not limited to AI technologies that accept text 
``prompts'' or to technologies permitting prompts of a particular 
length or complexity.
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    These are no longer hypothetical questions, as the Office is 
already receiving and examining applications for registration that 
claim copyright in AI-generated material. For example, in 2018 the 
Office received an application for a visual work that the applicant 
described as ``autonomously created by a computer algorithm running on 
a machine.'' \7\ The application was denied because, based on the 
applicant's representations in the application, the examiner found that 
the work contained no human authorship. After a series of 
administrative appeals, the Office's Review Board issued a final 
determination affirming that the work could not be registered because 
it was made ``without any creative contribution from a human actor.'' 
\8\
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    \7\ U.S. Copyright Office Review Board, Decision Affirming 
Refusal of Registration of a Recent Entrance to Paradise at 2 (Feb. 
14, 2022), https://www.copyright.gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf.
    \8\ Id. at 2-3. The Office's decision is currently being 
challenged in Thaler v. Perlmutter, Case No. 1:22-cv-01564 (D.D.C.).
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    More recently, the Office reviewed a registration for a work 
containing human-authored elements combined with AI-generated images. 
In February 2023, the Office concluded that a graphic novel \9\ 
comprised of human-authored text combined with images generated by the 
AI service Midjourney constituted a copyrightable work, but that the 
individual images themselves could not be protected by copyright.\10\
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    \9\ On the application, the applicant described the work as a 
``comic book.'' See U.S. Copyright Office, Cancellation Decision re: 
Zarya of the Dawn (VAu001480196) at 2 (Feb. 21, 2023), https://www.copyright.gov/docs/zarya-of-the-dawn.pdf.
    \10\ Id.
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    The Office has received other applications that have named AI 
technology as the author or co-author of the work or have included 
statements in the ``Author Created'' or ``Note to Copyright Office'' 
sections of the application indicating that the work was produced by or 
with the assistance of AI. Other applicants have not disclosed the 
inclusion of AI-generated material but have mentioned the names of AI 
technologies in the title of the work or the ``acknowledgments'' 
section of the deposit.
    Based on these developments, the Office concludes that public 
guidance is needed on the registration of works containing AI-generated 
content. This statement of policy describes how the Office applies 
copyright law's human authorship requirement to applications to 
register such works and provides guidance to applicants.
    The Office recognizes that AI-generated works implicate other 
copyright issues not addressed in this statement. It has launched an 
agency-wide initiative to delve into a wide range of these issues. 
Among other things, the Office intends to publish a notice of inquiry 
later this year seeking public input on additional legal and policy 
topics, including how the law should apply to the use of copyrighted 
works in AI training and the resulting treatment of outputs.

II. The Human Authorship Requirement

    In the Office's view, it is well-established that copyright can 
protect only material that is the product of human creativity. Most 
fundamentally, the term ``author,'' which is used in both the 
Constitution and the Copyright Act, excludes non-humans. The Office's 
registration policies and regulations reflect statutory and judicial 
guidance on this issue.
    In its leading case on authorship, the Supreme Court used language 
excluding non-humans in interpreting Congress's constitutional power to 
provide ``authors'' the exclusive right to their ``writings.'' \11\ In 
Burrow-Giles Lithographic Co. v. Sarony, a defendant accused of making 
unauthorized copies of a photograph argued that the expansion of 
copyright protection to photographs by Congress was unconstitutional 
because ``a photograph is not a writing nor the production of an 
author'' but is instead created by a camera.\12\ The Court disagreed, 
holding that there was ``no doubt'' the Constitution's Copyright Clause 
permitted photographs to be subject to copyright, ``so far as they are 
representatives of original intellectual conceptions of the author.'' 
\13\ The Court defined an ``author'' as ``he to whom anything owes its 
origin; originator; maker; one who completes a work of science or 
literature.'' \14\ It repeatedly referred to such ``authors'' as human, 
describing authors as a class of ``persons'' \15\ and a copyright as 
``the exclusive right of a man to the production of his own genius or 
intellect.'' \16\
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    \11\ U.S. Const. art. I, sec. 8, cl. 8 (Congress has the power 
``[t]o promote the Progress of Science and useful Arts, by securing 
for limited Times to Authors and Inventors the exclusive Right to 
their respective Writings and Discoveries.'').
    \12\ 111 U.S. 53, 56 (1884) (explaining that the defendant had 
argued that photographs were merely ``reproduction on paper of the 
exact features of some natural object or of some person'').
    \13\ Id. at 58.
    \14\ Id. at 57-58.
    \15\ Id. at 56 (describing beneficiaries of the Constitution's 
Copyright Clause as ``authors,'' who are one of ``two classes'' of 
``persons'').
    \16\ Id. at 58; see also id. at 60-61 (agreeing with an English 
decision describing an ``author'' as the ``person'' who was ``the 
cause of the picture which is produced'' and ``the man'' who creates 
or gives effect to the idea in the work).
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    Federal appellate courts have reached a similar conclusion when 
interpreting the text of the Copyright Act, which provides copyright 
protection only for ``works of authorship.'' \17\ The Ninth Circuit has 
held that a book containing words ``authored by non-human spiritual 
beings'' can only qualify for

[[Page 16192]]

copyright protection if there is ``human selection and arrangement of 
the revelations.'' \18\ In another case, it held that a monkey cannot 
register a copyright in photos it captures with a camera because the 
Copyright Act refers to an author's ``children,'' ``widow,'' 
``grandchildren,'' and ``widower,''--terms that ``all imply humanity 
and necessarily exclude animals.'' \19\
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    \17\ 17 U.S.C. 102(a).
    \18\ Urantia Found. v. Kristen Maaherra, 114 F.3d 955, 957-59 
(9th Cir. 1997) (internal punctuation omitted) (holding that ``some 
element of human creativity must have occurred in order for the Book 
to be copyrightable'' because ``it is not creations of divine beings 
that the copyright laws were intended to protect''). While the 
compilation of the book was entitled to copyright, the alleged 
``divine messages'' were not. Id.
    \19\ Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018), 
decided on other grounds.
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    Relying on these cases among others, the Office's existing 
registration guidance has long required that works be the product of 
human authorship. In the 1973 edition of the Office's Compendium of 
Copyright Office Practices, the Office warned that it would not 
register materials that did not ``owe their origin to a human agent.'' 
\20\ The second edition of the Compendium, published in 1984, explained 
that the ``term `authorship' implies that, for a work to be 
copyrightable, it must owe its origin to a human being.'' \21\ And in 
the current edition of the Compendium, the Office states that ``to 
qualify as a work of `authorship' a work must be created by a human 
being'' and that it ``will not register works produced by a machine or 
mere mechanical process that operates randomly or automatically without 
any creative input or intervention from a human author.'' \22\
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    \20\ U.S. Copyright Office, Compendium of U.S. Copyright Office 
Practices sec. 2.8.3(I)(a)(1)(b) (1st ed. 1973), https://copyright.gov/history/comp/compendium-one.pdf (providing example of 
shapes formed by liquid petroleum); see also U.S. Copyright Office, 
Sixty-Eighth Annual Report of the Register of Copyrights for the 
Fiscal Year Ending June 30, 1965, at 5 (1966), https://www.copyright.gov/reports/annual/archive/ar-1965.pdf (noting that 
computer-generated works raise a ``crucial question'' of whether the 
work ``is basically one of human authorship'').
    \21\ U.S. Copyright Office, Compendium of U.S. Copyright Office 
Practices sec. 202.02(b) (2d ed. 1984), https://www.copyright.gov/history/comp/compendium-two.pdf (explaining that as a result, 
``[m]aterials produced solely by nature, by plants, or by animals 
are not copyrightable''). It went on to state that because ``a work 
must be the product of human authorship,'' works ``produced by 
mechanical processes or random selection without any contribution by 
a human author are not registrable.'' Id. at 503.03(a).
    \22\ U.S. Copyright Office, Compendium of U.S. Copyright Office 
Practices sec. 313.2 (3d ed. 2021) (``Compendium (Third)'').
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III. The Office's Application of the Human Authorship Requirement

    As the agency overseeing the copyright registration system, the 
Office has extensive experience in evaluating works submitted for 
registration that contain human authorship combined with 
uncopyrightable material, including material generated by or with the 
assistance of technology. It begins by asking ``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.'' \23\ In the case 
of works containing AI-generated material, the Office will consider 
whether the AI contributions are the result of ``mechanical 
reproduction'' or instead of an author's ``own original mental 
conception, to which [the author] gave visible form.'' \24\ The answer 
will depend on the circumstances, particularly how the AI tool operates 
and how it was used to create the final work.\25\ This is necessarily a 
case-by-case inquiry.
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    \23\ Id. (quoting U.S. Copyright Office, Sixty-Eighth Annual 
Report of the Register of Copyrights for the Fiscal Year Ending June 
30, 1965, at 5 (1966)).
    \24\ Sarony 111 U.S. at 60.
    \25\ Many technologies are described or marketed as ``artificial 
intelligence,'' but not all of them function the same way for 
purposes of copyright law. For that reason, this analysis will be 
fact specific.
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    If a work's traditional elements of authorship were produced by a 
machine, the work lacks human authorship and the Office will not 
register it.\26\ For example, when an AI technology receives solely a 
prompt \27\ 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. 
Based on the Office's understanding of the generative AI technologies 
currently available, users do not exercise ultimate creative control 
over how such systems interpret prompts and generate material. Instead, 
these prompts function more like instructions to a commissioned 
artist--they identify what the prompter wishes to have depicted, but 
the machine determines how those instructions are implemented in its 
output.\28\ For example, if a user instructs a text-generating 
technology to ``write a poem about copyright law in the style of 
William Shakespeare,'' she can expect the system to generate text that 
is recognizable as a poem, mentions copyright, and resembles 
Shakespeare's style.\29\ But the technology will decide the rhyming 
pattern, the words in each line, and the structure of the text.\30\ 
When an AI technology determines the expressive elements of its output, 
the generated material is not the product of human authorship.\31\ As a 
result, that material is not protected by copyright and must be 
disclaimed in a registration application.\32\
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    \26\ This includes situations where an AI technology is 
developed such that it generates material autonomously without human 
involvement. See U.S. Copyright Office Review Board, Decision 
Affirming Refusal of Registration of a Recent Entrance to Paradise 
at 2-3 (Feb. 14, 2022), https://www.copyright.gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf (determining a 
work ``autonomously created by artificial intelligence without any 
creative contribution from a human actor'' was ``ineligible for 
registration'').
    \27\ While some prompts may be sufficiently creative to be 
protected by copyright, that does not mean that material generated 
from a copyrightable prompt is itself copyrightable.
    \28\ One image-generating AI product describes prompts as 
``influencing'' the output but does not suggest the prompts dictate 
or control it. See Prompts, Midjourney, https://docs.midjourney.com/docs/prompts (explaining that short text prompts cause ``each word 
[to have] a more powerful influence'' and that images including in a 
prompt may ``influence the style and content of the finished 
result'') (emphasis added).
    \29\ AI technologies do not always operate precisely as 
instructed. For example, a text-generating tool prompted to provide 
factual information may provide inaccurate information. One AI 
service describes this as the AI ``mak[ing] up facts or 
`hallucinat[ing]' outputs.'' ChatGPT General FAQ, OpenAI, https://help.openai.com/en/articles/6783457-chatgpt-general-faq. See also 
James Romoser, No, Ruth Bader Ginsburg did not dissent in 
Obergefell--and other things ChatGPT gets wrong about the Supreme 
Court, SCOTUSblog (Jan. 26, 2023), https://www.scotusblog.com/2023/01/no-ruth-bader-ginsburg-did-not-dissent-in-obergefell-and-other-things-chatgpt-gets-wrong-about-the-supreme-court/.
    \30\ Some technologies allow users to provide iterative 
``feedback'' by providing additional prompts to the machine. For 
example, the user may instruct the AI to revise the generated text 
to mention a topic or emphasize a particular point. While such 
instructions may give a user greater influence over the output, the 
AI technology is what determines how to implement those additional 
instructions.
    \31\ See id. at 61 (quoting British decision by Lord Justice 
Cotton describing an author as the person ``who has actually formed 
the picture'').
    \32\ See Compendium (Third) sec. 503.5 (a copyright registration 
``does not cover any unclaimable material that the work may 
contain,'' and applicants ``should exclude that material from the 
claim'').
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    In other cases, however, a work containing AI-generated material 
will also contain sufficient human authorship to support a copyright 
claim. For example, 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.'' \33\ Or an artist may 
modify material originally

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generated by AI technology to such a degree that the modifications meet 
the standard for copyright protection.\34\ In these cases, copyright 
will only protect the human-authored aspects of the work, which are 
``independent of'' and do ``not affect'' the copyright status of the 
AI-generated material itself.\35\
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    \33\ 17 U.S.C. 101 (definition of ``compilation''). In the case 
of a compilation including AI-generated material, the computer-
generated material will not be protected outside of the compilation.
    \34\ See Compendium (Third) sec. 507.1 (identifying that where a 
new author modifies a preexisting work, the ``new authorship . . . 
may be registered, provided that it contains a sufficient amount of 
original authorship''); see also 17 U.S.C. 101 (defining 
``derivative work'' to include works ``based upon one or more 
preexisting works'' where modifications to the work ``which, as a 
whole, represent an original work of authorship'').
    \35\ 17 U.S.C. 103(b).
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    This policy does not mean that technological tools cannot be part 
of the creative process. Authors have long used such tools to create 
their works or to recast, transform, or adapt their expressive 
authorship. For example, a visual artist who uses Adobe Photoshop to 
edit an image remains the author of the modified image,\36\ and a 
musical artist may use effects such as guitar pedals when creating a 
sound recording. In each case, what matters is the extent to which the 
human had creative control over the work's expression and ``actually 
formed'' the traditional elements of authorship.\37\
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    \36\ To the extent, however, that an artist uses the AI-powered 
features in Photoshop, the edits will be subject to the above 
analysis.
    \37\ Sarony, 111 U.S. at 61.
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IV. Guidance for Copyright Applicants

    Consistent with the Office's policies described above, applicants 
have a duty to disclose the inclusion of AI-generated content in a work 
submitted for registration and to provide a brief explanation of the 
human author's contributions to the work. As contemplated by the 
Copyright Act, such disclosures are ``information regarded by the 
Register of Copyrights as bearing upon the preparation or 
identification of the work or the existence, ownership, or duration of 
the copyright.'' \38\
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    \38\ 17 U.S.C. 409(10).
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A. How To Submit Applications for Works Containing AI-Generated 
Material

    Individuals who use AI technology in creating a work may claim 
copyright protection for their own contributions to that work. They 
must use the Standard Application,\39\ and in it identify the author(s) 
and provide a brief statement in the ``Author Created'' field that 
describes the authorship that was contributed by a human. For example, 
an applicant who incorporates AI-generated text into a larger textual 
work should claim the portions of the textual work that is human-
authored. And an applicant who creatively arranges the human and non-
human content within a work should fill out the ``Author Created'' 
field to claim: ``Selection, coordination, and arrangement of [describe 
human-authored content] created by the author and [describe AI content] 
generated by artificial intelligence.'' Applicants should not list an 
AI technology or the company that provided it as an author or co-author 
simply because they used it when creating their work.
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    \39\ The Office's other types of application forms do not 
contain fields where applicants can disclaim unprotectable material 
such as AI-generated content. For example, the Single Application 
may only be used if ``[a]ll of the content appearing in the work'' 
was ``created by the same individual.'' 37 CFR 202.3(b)(2)(i)(B).
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    AI-generated content that is more than de minimis should be 
explicitly excluded from the application.\40\ This may be done in the 
``Limitation of the Claim'' section in the ``Other'' field, under the 
``Material Excluded'' heading. Applicants should provide a brief 
description of the AI-generated content, such as by entering 
``[description of content] generated by artificial intelligence.'' 
Applicants may also provide additional information in the ``Note to 
CO'' field in the Standard Application.
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    \40\ The Office does not require applicants to disclaim ``brief 
quotes, short phrases, and other de minimis uses'' of preexisting 
works. Compendium (Third) sec. 503.5.
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    Applicants who are unsure of how to fill out the application may 
simply provide a general statement that a work contains AI-generated 
material. The Office will contact the applicant when the claim is 
reviewed and determine how to proceed. In some cases, the use of an AI 
tool will not raise questions about human authorship, and the Office 
will explain that nothing needs to be disclaimed on the application.

B. How To Correct a Previously Submitted or Pending Application

    Applicants who have already submitted applications for works 
containing AI-generated material should check that the information 
provided to the Office adequately disclosed that material. If not, they 
should take steps to correct their information so that the registration 
remains effective.
    For applications currently pending before the Office, applicants 
should contact the Copyright Office's Public Information Office and 
report that their application omitted the fact that the work contained 
AI-generated material.\41\ Staff will add a note to the record, which 
the examiner will see when reviewing the claim. If necessary, the 
examiner then will correspond with the applicant to obtain additional 
information about the nature of the human authorship included in the 
work.
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    \41\ The Public Information Office can be reached through the 
Office's website (https://copyright.gov/help/) or by phone at (202) 
707-3000 or (877) 476-0778.
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    For applications that have already been processed and resulted in a 
registration, the applicant should correct the public record by 
submitting a supplementary registration. A supplementary registration 
is a special type of registration that may be used ``to correct an 
error in a copyright registration or to amplify the information given 
in a registration.'' \42\ In the supplementary registration, the 
applicant should describe the original material that the human author 
contributed in the ``Author Created'' field, disclaim the AI-generated 
material in the ``Material Excluded/Other'' field, and complete the 
``New Material Added/Other'' field. As long as there is sufficient 
human authorship, the Office will issue a new supplementary 
registration certificate with a disclaimer addressing the AI-generated 
material.\43\
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    \42\ 17 U.S.C. 408(d); see also Compendium (Third) sec. 1802 
(discussing supplementary registration process); U.S. Copyright 
Office, Circular 8: Supplementary Registration, https://copyright.gov/circs/circ08.pdf (last revised Mar. 2021); 37 CFR 
201.3(c)(14) (fee schedule for supplementary registration).
    \43\ Though the supplementary registration certificate will have 
a new registration number and effective date of registration, the 
original registration ``will not be expunged,'' and the two 
effective dates ``will coexist with each other in the registration 
record'' so that a court can determine which date to apply if the 
copyrighted work is later subject to litigation. 37 CFR 202.6(f)(1)-
(2); U.S. Copyright Office, Circular 8: Supplementary Registration, 
https://copyright.gov/circs/circ08.pdf (last revised Mar. 2021).
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    Applicants who fail to update the public record after obtaining a 
registration for material generated by AI risk losing the benefits of 
the registration. If the Office becomes aware that information 
essential to its evaluation of registrability ``has been omitted 
entirely from the application or is questionable,'' it may take steps 
to cancel the registration.\44\ Separately, a court may disregard a 
registration in an infringement action pursuant to section 411(b) of 
the Copyright Act if it concludes that the applicant knowingly provided 
the Office with inaccurate information, and the accurate

[[Page 16194]]

information would have resulted in the refusal of the registration.\45\
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    \44\ See 37 CFR 201.7(c)(4). If the work contains human 
authorship intermingled with AI-created material, the Office may add 
an annotation to clarify the scope of the claim.
    \45\ 17 U.S.C. 411(b)(1)(A); Unicolors, Inc. v. H&M Hennes & 
Mauritz, L.P., 142 S. Ct. 941, 948 (2022) (requiring that the 
applicant ``was actually aware of, or willfully blind to'' the 
inaccurate information).
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V. Conclusion

    This policy statement sets out the Office's approach to 
registration of works containing material generated by AI technology. 
The Office continues to monitor new factual and legal developments 
involving AI and copyright and may issue additional guidance in the 
future related to registration or the other copyright issues implicated 
by this technology.
* * * * *

    Dated: March 10, 2023.
Shira Perlmutter,
Register of Copyrights and Director of the U.S. Copyright Office.
[FR Doc. 2023-05321 Filed 3-15-23; 8:45 am]
BILLING CODE 1410-30-P