It stated that the level of human creativity involved in a work is an important factor in determining whether or not it will grant copyright protection. It implied that current AI models are incapable of producing copyrightable work. “Based on the Office’s understanding of the currently available generative AI technologies, users do not have ultimate creative control over how such systems interpret prompts and generate material,” the USCO stated. “It is well established in the Office’s opinion that copyright can protect only material that is the product of human creativity.” In one famous case, the office ruled that selfies taken by a monkey could not be copyrighted.
When it comes to works containing material generated by an AI, the USCO considers whether the model’s contributions to the work are the result of human intervention “If they are a “mechanical reproduction” (i.e., generated in response to text prompts) or if they represent the author’s “own mental conception.
