USCO lack of precision and inconsistencies in application of the law create uncertainty which increases lawsuits and court clog

Last year, the Copyright Office issued guidance on the registration of works that contain AI-generated elements titled Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence. In the guidance, the Office explains that applicants have a duty to disclose the inclusion of AI-generated content in a work submitted for registration and to provide an explanation of the human author’s contributions to the work. Other notable requirements are that for AI-generated content, registrants must use the standard application, and in a situation where registration has already been granted (but AI-generated content was not disclosed), the applicant should correct the public record by submitting a supplementary registration. Unfortunately, despite the Copyright Office’s efforts to provide clarification, somewhat unsurprisingly, the Guidance has left many unanswered questions and resulted in some confusion on how the standards set forth in the guidance will be applied in practice. For example, there are several inconsistencies between the guidance and parts of the Copyright Office Compendium on registration guidelines that must be clarified. For instance, the Compendium says that unclaimable material should be disclaimed when it represents an “appreciable portion” of the whole work, whereas the guidance says that AI-generated content that is more than de minimis should be explicitly excluded from the application. These are two different standards that must be reconciled. In a webinar explaining the Guidance, the Office attempted to define what it meant by de minimis and described how it compared to “appreciable amount,” but unfortunately this raised additional questions. Use of the de minimis standard to separate material that should be disclaimed from material that should not be is not only confusing but also an inappropriate standard. The term “more than de minimis” is used in other contexts in the law where it does not involve a standard of separable copyrightability. For instance, in the context of joint authorship, a more than de minimis contribution may suffice to constitute joint authorship while not rising to the level of independent copyright protection, and, in the context of an infringement analysis, whether a portion of a work used without authorization is “more than de minimis” may have different implications. Because the de minimis standard varies in different contexts, the Office should not use the term as the standard for determining when it is necessary to disclaim material in a registration application. It would make sense for the Office’s guidance to simply confirm the existing standard articulated in section 621.2 of the Compendium, which explains that “[u]nclaimable material should be disclaimed only if it represents an appreciable portion of the work as a whole.” The guidance also includes the requirement that registrants must use the standard application when registering a work with AI-generated content, which, among other things, prohibits the use of group registrations and the benefits that flow from them, making it more challenging and economically infeasible for certain creators to register their works with the Office. Lastly, there is significant concern amongst many in the copyright community about retroactive application of the Copyright Office’s guidance. For creators and organizations with a vast portfolio of registrations, the threat of invalidation or cancellation is a major concern, especially when the guidance on where to draw the line regarding what to disclaim is unclear. Many copyright owners are worried that the new guidance will be misused by overly aggressive litigators to challenge the validity of every copyright registration if they believe AI was used even slightly and was not disclosed, which in turn might make litigation even more expensive than it currently is.