Copyright doesn’t yet exist for AI generated content as it needs an author, according to Lee & Hayes attorney Ethan Vodde.

Speaking at Pocket Gamer Connects San Francisco 2024, Vodde discussed copyright and trademark law in the US. He said that if someone simply puts in a query into a generative AI tool, the result of that query is not copyrightable.

However, in answer to an audience question, Vodde noted that “right now it’s the Wild West” in the US when it comes to AI laws, and there need to be court cases to help define copyright rules in this space.

Human authorship

Guidance from the US Copyright Office notes:

"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. For example, when an AI technology receives solely a prompt 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."

It adds: "When an AI technology determines the expressive elements of its output, the generated material is not the product of human authorship. As a result, that material is not protected by copyright and must be disclaimed in a registration application."

It should be noted that this does not necessarily apply to works created with the assistance of AI, where "human authorship" is involved.

In his talk, Vodde said in general, copyright has to be an original work of authorship. It needs to be an independent, original creation, only minimal creativity is necessary, it has to be non-functional, and it needs an author. Copyright is free and gives rights to the author as soon as the work is done, he said.

“Copyright is expression at its very root."