AI Update: Copyright and Thoughts on the Authors Guild “Human Authored” Certification

In the last few days, I’ve see commentary on social asserting things like businesses must hire human writers, because they can’t own the copyright in work produced with AI. One cited a recent U.S. Supreme Court order declining to review lower court decisions that upheld the Copyright Office’s “human author” rule.

Then, this morning’s Publishers Weekly newsletter noted that the Authors Guild “Human Authored” program for issuing a certification badge has now been opened to all authors, not just members.

The commentary about copyright is incorrect. And we think the Authors Guild program is too restrictive both in the hoops you must hop through to gain access and in its apparent narrow focus solely on the writing that goes into building a book.

Caveat: In the End It Must Be Your Work

Before critiquing the Copyright Office and Authors Guild news, I want to be clear on our position about using AI in your writing. Our tagline says it all:

Good things come to those who WRITE! ^SM

What do we mean by “good things” you may ask. Well, for nonfiction, you could check out my post, 10 Ways Writing a Book Builds Business Success, and Yvonne’s more recent, Why Writing Your Book is the Smartest Marketing Move for Your Business Today. And fiction authors should adopt a similar mindset, treating their writing as a business, Your Book as a Business: Thinking Like an Authorpreneur.

Some may claim that publishing AI-generated books can bring some of those benefits. We don’t agree, for lots of reasons, from the problems of quality and hallucinations to the simple fact that it’s in the writing that human authors truly master their topics.

I’m taken back to my days as an appellate lawyer and how much more difficult it was to prepare and argue a case if someone else wrote the brief. I cringe at each new headline about some lawyer being sanctioned for filing an AI-written brief with case citations and quotes that the AI simply made up.

But perhaps the greatest “good things” that come from writing your book are those feelings of satisfaction, accomplishment, self-confidence, and pure joy that I — and every author we’ve worked with or talked to — felt when they opened the package and held their book in their hands. And those feelings resurface every time someone mentions how your book helped them, or gave them enjoyment.

It’s hard to imagine anyone feeling anything but imposter syndrome if an AI did most of the work.

Now, on to those news items.

Works Using AI Can Be Copyrighted, If . . .

Let’s start with the recent case that some commentators on social media have been saying means you can’t copyright material produced with AI. The Supreme Court order gave no reasons for denying review. That leaves the appellate court decision in place and we need to look there to understand what the case actually stands for.

The case, Thaler v. Perlmutter, began with Thaler filing a copyright application for an image he created with an AI tool he’d built. He called the image “A Recent Entrance to Paradise” and his AI the “Creativity Machine.” In his application, Thaler stated that the Author of the work was the “Creativity Machine” and the Copyright Claimant was Stephen Thaler. In the section labeled Author Created, he wrote “2-D artwork, created autonomously by machine.”

That really was both the beginning and ending of his case. The Copyright Office denied his application, based on its longstanding rule that copyright requires human authorship, highlighting Thaler’s own statements as showing that his image lacked “sufficient creative input or intervention from a human author.”

Several levels of review in the Copyright Office and two levels of federal courts affirmed that ruling, holding that,

“Human authorship is a bedrock requirement of copyright.”

But in explaining its ruling, the Court of Appeals rejected Thaler’s argument that “the human-authorship requirement wrongly prevents copyright law from protecting works made with artificial intelligence.” To the contrary, the court wrote,

“the human authorship requirement does not prohibit copyrighting work that was made by or with the assistance of artificial intelligence. The rule requires only that the author of that work be a human being — the person who created, operated, or used artificial intelligence — and not the machine itself.”

The court noted that the Copyright Office has approved registration of “works made by human authors who use artificial intelligence.” It also noted there remains some controversy over where the line should be drawn on how much human input must be involved to meet the human authorship requirement.

We can’t know how or when that fuzzy line will be clarified. But the court pointed to some guidance from case law involving other technologies:

“Photography, sound recordings, video recordings, and computer programs are all technologies that were once novel, but which copyright law now protects.”

The mention of photography is especially instructive. Two years ago I predicted that a Supreme Court decision from the 1800s would likely help define where that line should be drawn, in Taming the AI Beast: How to make ChatGPT serve, not enslave you.

Because that post is quite long (you’ll have to scroll down into the section “Who Owns Copyright in Your Work”), I’ll repeat some of it here.

In Burrow-Giles Lithographic Company v. Sarony, the Supreme Court considered the case of photographer Napoleon Sarony and his famous photograph of Oscar Wilde. A lithographer who had been reproducing and selling copies claimed the photo was not protected by copyright because it was:

“… the mere mechanical reproduction of the physical features or outlines of some object, animate or inanimate, and involves no originality of thought or any novelty in the intellectual operation connected with its visible reproduction in shape of a picture.”

In rejecting that argument, the Court said the evidence showed the photograph did involve elements “of originality, of intellectual production, of thought, and conception on the part of the author.” It noted the trial judge had made specific findings of fact that Sarony had created the photograph:

“… entirely from his own original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by [the photographer], he produced the picture in suit.”

I suggested then that in order for AI output to qualify for copyright protection it must similarly come entirely from your own “original mental conception.” Here’s how I compared the elements “of originality, of intellectual production, of thought, and conception on the part of the author” to working with AI as a tool, rather than a co-author:

“Like any other craft, writing and creating images have always challenged humans to develop and then learn how to use new tools. Over time, I think these new AI tools will seem no different. 

“The main skillsets you’ll need to master based on the exciting potential and worrisome problems aren’t much different from the past, after all: 

• Experimenting with and learning to articulate your own questions that produce promising output. This is like Sorony arranging the setting for Wilde’s photo.
• Testing and verifying that the output is sensible, up to date, and true. Like Sorony making sure his camera, film, and the subsequent development process worked properly.
• Then, blending in your own original research and writing to make certain the ultimate result gives visible expression to ideas from your mind. Like posing and evoking the right expression from your subject.”

To those I’d now add iterate with repeated prompts to make the AI output reflect your “mental conception” and download the complete record of your prompts and the AI’s responses, so you can show how your intellectual input produced the output.

Then treat the output as a rough draft and rewrite most of it in your own words.

What Does the Authors Guild “Human Authored” Badge Certify?

When I read the headline about a “human authored” certification, I immediately thought about the copyright issues just discussed. And, how would the Authors Guild be able to certify it?

Skipping over my personal issues with creating an Authors Guild account and their requirement for authors to verify their identity “through a third-party verification service” (nope!), here’s what’s really going on, based on their FAQ page:

• The author must execute a license agreement for using their badge and pay $10 per title, which they say may change as they learn the costs of enforcing their trademark against misuse of their badge (paragraphs 2 and 9).
• In the license agreement for each book, the author is “representing and warranting that the book is Human Authored” (paragraph 2).

Wait, what? They’re just taking the author’s word for it?

Yup. Here’s why:

“As of now, there is no reliable way to test whether a work includes AI generated material, though this may change in the future. We are using a self-certification system with enforcement against those who misuse our mark …” (paragraph 11).

So, what do they mean by human authored? Here’s how they attempt to define it:

“Human Authored is a certification mark owned by the Authors Guild that may be used to indicate that a book was written by a human and not generated by AI. To qualify as “Human Authored” a literary work must have been fully authored by one or more human beings and not generated by AI, except for a de minimis amount (such as through the use of AI-powered spelling and grammar check applications). Use of generative AI to create a table of contents, indices, or other auxiliary parts of a book, or for researching, brainstorming, outlining, or any purposes other than generating text does not disqualify a work from being Human Authored.”

Pay close attention to the several exemptions for using AI in your writing. Using spelling and grammar checking apps is okay. Using AI to create your TOC, index, or “other auxiliary parts” of your book is okay, as are “researching, brainstorming, outlining, or any purposes other than generating text.”

That phrase “other than generating text” seems odd, since Grammarly, for example, frequently suggests rewrites of sentences that are certainly “text.”

But going back to the simple fact that all this is based on self-certification, one wonders what the badge adds. If the author is to be trusted, then a simple statement on the copyright page should suffice.

What About Human Editing and Design?

As I said at the outset, the Authors Guild certification seems too narrow in another way, focusing only on the text portion of a book. That got me thinking about what we do with our author clients.

Working directly with the author, we don’t really have to take their word for it. We know their books are human authored, because we help them take a rough idea or manuscript through the entire developmental editing process with Yvonne. And then into the interior and cover design process to build their book.

Humans at every stage.

So I thought, hey, with our clients let’s jointly certify that their work is Human Authored, Edited, and Designed. And I made a badge for those of our clients who want to use it. We’ll work it out human-to-human.

Love to hear your thoughts on how this notion of certifying human authorship plays with the copyright issues. And what do you think about our badge?