March 2025 Contrary to their previous standpoint that copyright does not subsist in AI-generated works, the US Copyright Office have recently registered “A Single Piece of American Cheese” – a modification of an image generated by an AI tool called Invoke AI.
The original AI image was modified by Kent Keirsey, CEO of Invoke AI and also the owner of the copyright registration in question. The image was modified using a technique called inpainting.
The application to register “A Single Piece of American Cheese” was initially rejected, but it was recently reconsidered after Keirsey argued that the process of creating the work involved sufficient human creativity.
In view of Keirsey’s arguments, the US Copyright Office registered the work on the basis that it required the “selection, coordination, and arrangement of material generated by artificial intelligence”.
How was the Work Created?
In his efforts to convince the US Copyright Office that the work “exhibits sufficient creative authorship to warrant registration”, Keirsey produced a step-by-step guide to the creation process, namely the “Copyright Whitepaper”.
As a first step, the guide explains that Keirsey entered the following prompts into Invoke AI:
- “fractured glass, faces in the facets, surreal pattern of glazed brushstrokes, spaghetti noodle hair”;
- “blurry, out of focus, sketch. photo”.
Following these prompts, the AI tool generated three images and Keirsey then selected one of the three images to be his digital canvas, on which he would carry out further work.
The further work involved inpainting the image generated by the AI tool. Inpainting is a process which allows the user to make changes to the AI-generated image.
On the left-hand side is shown the original image generated by Invoke AI following Keirsey’s prompts. On the right-hand side is shown the final work, “A Single Piece of American Cheese”, following inpainting.
What view have the US Copyright Office Taken So Far Regarding the Copyrightability of AI-Generated Images?
Until now, when deciding whether copyright subsists in AI-generated works, the US Copyright Office have been consistent in their approach, routinely finding that human authorship is a “bedrock requirement” and a principle deeply rooted in US copyright law.
For this reason, the US Copyright Office have typically refused the registration of any works for which they cannot observe an adequate level of original human authorship and this approach has also been consistent with other intellectual property offices around the world.
In the past, the US Copyright Office have not only refused the registration of works which have been generated solely by AI tools, but also of works which have been generated by AI tools and modified using processes such as inpainting, their reasoning being that the modified works were deemed to lack sufficient human contribution.
For example, a work called “Théâtre D’opéra Spatial”, for which registration was sought by Jason Allen, was refused by the US Copyright Office.
On the left-hand side is shown the original image generated by the AI tool, Midjourney. On the right-hand side is shown the final work, “Théâtre D’opéra Spatial”, following modification.
When comparing the initial image provided by the AI tool with the final work in the cases of “A Single Piece of American Cheese” and “Théâtre D’opéra Spatial”, it is difficult to see how “A Single Piece of American Cheese” demonstrates more creative selections than “Théâtre D’opéra Spatial”.
In view of the US Copyright Office’s decision to reject Allen’s application to register “Théâtre D’opéra Spatial”, the recent registration of “A Single Piece of American Cheese” appears to represent a sizable step forward from the US Copyright Office in acknowledging that the modification of AI-generated works can lead to artistic creations.
It could be, however, that Keirsey simply put forward a more convincing argument, supported by stronger evidence to demonstrate that sufficient creative authorship went into his work. Keirsey’s argument included claims that he “selected, coordinated, and arranged numerous AI generated image fragments into a single, unified image” and, therefore, his work “can and should be thought of as a kind of collage of separate elements that together form something new”. The evidence to support this reasoning took the form of a video demonstrating each step of the creation process, in addition to the step-by-step text guide mentioned above.
In the case of “Théâtre D’opéra Spatial”, Allen also provided the AI tool, Midjourney, with a comparable number of prompts and creative inputs. Further, it is clear that Allen was also required to make a number of creative selections and arrangements to convert the original AI image into the final work. Therefore, it is possible that Allen’s failure to successfully register his work was not due to a lesser human contribution but instead due to a less compelling argument / lack of supporting evidence.
Discussion
In summary, the US Copyright Office have departed from their previous standpoint and approved the registration of “A Single Piece of American Cheese” on the basis that Keirsey’s modification of the AI-generated image sufficient creativity and resulted in a substantially changed image.
Interestingly, the US Copyright Office have issued their decision to register Mr Keirsey’s work just one day after publishing their report on the copyrightability of AI outputs. Perhaps this timing is intentional, in an attempt to demonstrate the correct application and interpretation of the recommendations in the report, which suggest that prompts alone are not always sufficient to demonstrate originality but instead “creative selection, coordination, or arrangement” of AI images, “creative modifications” made to the initial image and “expressive inputs” should also be considered in determining originality.
Despite issuing their decision at the same time as publishing their report on the copyrightability of AI images, there still appears to be some ambiguity around what level of modification is required for the US Copyright Office to consider the work registerable and, specifically, where the line is drawn between merely giving the AI tool prompts and contributing adequate ““creative selection, coordination, or arrangement”. Looking at the contrasting decisions in the cases of “Théâtre D’opéra Spatial” and “A Single Piece of American Cheese”, these distinctions have not been made clear. Hence, it seems the inconsistency and ambiguity may persist, at least for a while, until further decisions are issued on applications to register AI-works.
