Prompting the E-Brushes: Users as Authors in Generative AI

Abstract: Since its introduction in 2022, Generative AI has significantly impacted the art world, from winning state art fairs to creating complex videos from simple prompts. Amid this renaissance, a pivotal issue emerges: should users of Generative AI be recognized as authors eligible for copyright protection? The Copyright Office, in its March 2023 Guidance, argues against this notion. By comparing the prompts to clients' instructions for commissioned art, the Office denies users authorship due to their limited role in the creative process. This Article challenges this viewpoint and advocates for the recognition of Generative AI users who incorporate these tools into their creative endeavors. It argues that the current policy fails to consider the intricate and dynamic interaction between Generative AI users and the models, where users actively influence the output through a process of adjustment, refinement, selection, and arrangement. Rather than dismissing the contributions generated by AI, this Article suggests a simplified and streamlined registration process that acknowledges the role of AI in creation. This approach not only aligns with the constitutional goal of promoting the progress of science and useful arts but also encourages public engagement in the creative process, which contributes to the pool of training data for AI. Moreover, it advocates for a flexible framework that evolves alongside technological advancements while ensuring safety and public interest. In conclusion, by examining text-to-image generators and addressing misconceptions about Generative AI and user interaction, this Article calls for a regulatory framework that adapts to technological developments and safeguards public interests