[Wowfunhappy]

> fully-generated content is public domain and copyright can not be applied to it.

Some people keep saying this but it seems obviously wrong to me.

At least in the United States, “sweat of the brow” has zero bearing on whether a work is subject to copyright[1]. You can spend years carefully compiling an accurate collection of addresses phone numbers, but anyone else can republish that information, because facts are not a creative work.

But the output of an AI system is clearly not factual! By extension, it doesn’t matter how little work you put in—if the work is creative in nature, it is still subject to copyright.

1: https://en.wikipedia.org/wiki/Sweat_of_the_brow#United_State...

(IANAL, yadda yadda.)

[SAI_Peregrinus]

Sweat of the Brow is irrelevant. Only humans (or collections of humans) can create a work that gets covered by copyright. Non-human animals cannot create copyrighted works, even intelligent ones. Humans can apply sufficient creative transformations to non-copyrighted works to create copyrighted works.

[Wowfunhappy]

A human did create the work. A human turned on the computer and pressed the button.

[SAI_Peregrinus]

A human needs to have significant creative choices involved in the creation for a work to be copyrightable. Naruto v. Slater litigated this, where a "selfie" taken by a macaque was ruled to not be eligible for copyright.

U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 306 (3d ed. 2021)¹ is quite explicit:

> The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being.

> The copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the mind.” Trade-Mark Cases, 100 U.S. 82, 94 (1879). Because copyright law is limited to “original intellectual conceptions of the author,” the Office will refuse to register a claim if it determines that a human being did not create the work. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884). For representative examples of works that do not satisfy this requirement, see Section 313.2 below.

This has not yet been litigated to conclusion, but it seems likely to me that LLM-generated outputs are not subject to copyright.

¹https://www.copyright.gov/comp3/chap300/ch300-copyrightable-...

[Wowfunhappy]

> A human needs to have significant creative choices involved in the creation for a work to be copyrightable.

How does this square with encryption keys being copyrightable?

[SAI_Peregrinus]

They aren't. DMCA anti-circumvention provisions are a different area of law.