A Practical Guide Based on Successful Registrations
By Elliot M. Zimmerman, Esq.
Board Certified Intellectual Property Attorney
HYPOTHETICAL SCENARIO
Assume an author writes original lyrics and music, performs the song (vocally and/or instrumentally) to create an initial sound recording, then enhances that recording using AI technology. The author then creates a motion picture/video using the lyrics, original photographs, illustrations, a script, and arranges, orders, selects, and coordinates all elements to produce the final audiovisual work.
This guide provides the recommended language for filing SR (Sound Recording), PA (Performing Arts), and VA (Motion Picture) applications to maximize copyright protection while properly addressing AI-assisted elements.
GENERAL PRINCIPLES
- AI is a tool, not an author. All creative expression originates from human authorship.
- AI-generated elements are derivative of pre-existing human-authored material.
- The author maintains creative control throughout the process.
- Focus on what the human created, not what the AI “generated.”
- Be consistent across all applications (SR, PA, VA).
SR APPLICATION (SOUND RECORDING)
Use this for the sound recording itself—the audio performance.
AUTHOR CREATED:
Sound recording, including vocal and instrumental performance, AI-enhanced audio elements, and production.
DISCLAIMER SECTION:
CHECK EXISTING MATERIAL:
[ ] Preexisting material (check if any preexisting material is incorporated)
WHAT TO DISCLAIM:
Material Excluded from This Claim: None.
OR, if you have a preexisting composition:
Material Excluded from This Claim: Preexisting musical composition and lyrics (if previously registered or subject of separate application).
WHAT TO ADD (NEW MATERIAL INCLUDED):
New Material Included in This Claim: Vocal performance, instrumental performance, initial sound recording, AI-enhanced audio elements, audio production, mixing, and mastering.
NOTE TO EXAMINER:
This sound recording was created by the author who wrote the lyrics and music, performed the vocals and instrumentation, created an initial sound recording, and then used AI technology to enhance the audio quality. All creative expression in this sound recording originates from human authorship. AI tools were used solely under the author’s direct creative control to enhance pre-existing human-authored audio material. No part of this work was autonomously generated by AI without substantial human creative control.
PA APPLICATION (PERFORMING ARTS – MUSICAL COMPOSITION/LYRICS)
Use this for the underlying musical composition and lyrics.
AUTHOR CREATED:
Musical composition with lyrics.
DISCLAIMER SECTION:
CHECK EXISTING MATERIAL:
[ ] Preexisting material (check if any preexisting material is incorporated)
WHAT TO DISCLAIM:
Material Excluded from This Claim: None.
OR, if incorporating preexisting material:
Material Excluded from This Claim: Any preexisting musical elements or lyrics incorporated into this work.
WHAT TO ADD (NEW MATERIAL INCLUDED):
New Material Included in This Claim: Musical composition, lyrics, and arrangement.
NOTE TO EXAMINER:
This musical composition and lyrics were created entirely by human authorship without any AI assistance. The author wrote the complete lyrics and musical composition. This work is the product of human creativity and expression.
VA APPLICATION (MOTION PICTURE/AUDIOVISUAL WORK)
Use this for the video/motion picture.
AUTHOR CREATED:
Entire motion picture, including visual animation, editing, visual effects, and synchronization with sound recording.
DISCLAIMER SECTION:
CHECK EXISTING MATERIAL:
[ ] Preexisting material (check if any preexisting material is incorporated)
WHAT TO DISCLAIM:
Material Excluded from This Claim: Preexisting sound recording (if registered separately); some visual elements generated by artificial intelligence (AI) based on human-directed prompts and original human-authored source material.
OR, if the sound recording is being registered in the same application:
Material Excluded from This Claim: Some visual elements generated by artificial intelligence (AI) based on human-directed prompts and original human-authored source material.
WHAT TO ADD (NEW MATERIAL INCLUDED):
New Material Included in This Claim: Original photographs, original drawings and illustrations, original script, original storyboard, lyrics as script, character descriptions, story elements, creative direction, prompt authorship, video editing, cutting, sequencing, transitions, visual effects, audio synchronization, selection, coordination, and arrangement of visual elements.
NOTE TO EXAMINER:
This motion picture is a product of human authorship. All story elements, character descriptions, lyrics, music, script, storyboard, photographs, drawings, and creative direction were conceived and authored by the author. AI tools were used solely under the author’s instruction to render outputs based on original human input, including original photographs, drawings, script, and detailed textual prompts. The visual elements generated by AI are derivative works based on pre-existing human-authored material (photographs, drawings, script, lyrics). The author maintained continuous creative control throughout the process, including selection, coordination, and arrangement of all visual elements. No part of this work was autonomously generated by AI without substantial human creative control.
ALTERNATIVE VA LANGUAGE (IF EXAMINER CHALLENGES DERIVATIVE WORK CLAIM)
If the examiner challenges the derivative work theory for AI-generated visual elements, use this alternative language:
AUTHOR CREATED:
Motion picture based on and derivative of the lyrics, script, photographs, and drawings, including visual elements generated from those pre-existing human-authored works using AI as a tool.
DISCLAIMER SECTION:
CHECK EXISTING MATERIAL:
[ ] Preexisting material (check if any preexisting material is incorporated)
WHAT TO DISCLAIM:
Material Excluded from This Claim: Preexisting sound recording (if registered separately); preexisting lyrics, script, photographs, and drawings (if registered separately).
WHAT TO ADD (NEW MATERIAL INCLUDED):
New Material Included in This Claim: Motion picture adaptation, transformation, and recasting of pre-existing human-authored lyrics, script, photographs, and drawings into visual form; creative direction; prompt authorship; video editing; cutting; sequencing; transitions; visual effects; audio synchronization; selection; coordination; and arrangement of visual elements.
NOTE TO EXAMINER:
This motion picture constitutes a derivative work under 17 U.S.C. § 101, based on pre-existing human-authored works including lyrics, script, photographs, and drawings. The AI technology was used as a tool to transform, recast, and adapt these pre-existing human-authored works into visual form. The author, as copyright owner of the underlying works, has the exclusive right under 17 U.S.C. § 106(2) to authorize the creation of derivative works. The visual elements are not autonomous AI creations but are derivative of the author’s pre-existing human expression. The author maintained continuous creative control throughout the transformation process.
KEY STRATEGIES FOR MAXIMUM PROTECTION
- FILE ALL THREE APPLICATIONS (SR, PA, VA) WHEN POSSIBLE
- SR protects the sound recording
- PA protects the musical composition and lyrics
- VA protects the motion picture/audiovisual work
- This creates overlapping layers of protection
- CONSISTENCY IS CRITICAL
- Use consistent language across all applications
- Reference related applications in the “Note to Examiner”
- Maintain the same theory of human authorship
- FOCUS ON HUMAN CREATIVE CONTROL
- Emphasize that AI is a tool, not an author
- Highlight the human-authored source material
- Describe the iterative process of human direction
- DERIVATIVE WORK THEORY
- Frame AI-generated elements as derivative of pre-existing human-authored works
- Cite 17 U.S.C. § 101 definition of derivative work
- Assert your right under § 106(2) to authorize derivative works
- COMPILATION AUTHORSHIP
- Even if derivative work theory is challenged, compilation authorship (selection, coordination, arrangement) is always protectable
- This is your fallback position
- PRECEDENT AND CONSISTENCY
- Reference successful registrations with similar language
- Challenge inconsistent treatment
- Raise due process concerns if applications are treated differently
- THE “WHO DECIDES” ARGUMENT
- Complex factual and legal determinations about AI and derivative works should not be made at the registration stage
- Registration should proceed where there is a plausible claim of copyright
- Disputed questions should be left for judicial adjudication
RESPONDING TO EXAMINER INQUIRIES
When an examiner questions AI-generated material:
- NEVER ACCEPT A LIMITATION WITHOUT ARGUMENT
- The examiner’s first offer is rarely the best outcome
- Push back with derivative work and compilation theories
- USE THE DERIVATIVE WORK ARGUMENT FIRST
- AI-generated elements are derivative of your pre-existing human-authored works
- This is the strongest legal theory
- FALL BACK TO COMPILATION AUTHORSHIP
- Even if derivative work theory is rejected, your selection, coordination, and arrangement are protectable
- CITE PRECEDENT
- Reference your successful registrations with similar language
- Challenge inconsistent treatment
- RAISE PROCEDURAL CONCERNS
- Complex determinations should not be made at registration stage
- Due process and arbitrary/capricious concerns
- OFFER ALTERNATIVE LANGUAGE
- If examiner insists on limitation, propose language that acknowledges derivative work status
- Example: “Motion picture based on and derivative of the lyrics, including visual elements generated from the lyrics using AI as a tool”
SAMPLE COMPLETE APPLICATION SET
For a work where you write lyrics/music, perform, enhance with AI, and create a video:
SR APPLICATION:
- Author Created: Sound recording, including vocal and instrumental performance, AI-enhanced audio elements, and production
- Material Excluded: None
- New Material: Vocal performance, instrumental performance, initial sound recording, AI-enhanced audio elements, audio production, mixing, and mastering
- Note: This sound recording was created by the author who wrote the lyrics and music, performed the vocals and instrumentation, created an initial sound recording, and then used AI technology to enhance the audio quality. All creative expression originates from human authorship.
PA APPLICATION:
- Author Created: Musical composition with lyrics
- Material Excluded: None
- New Material: Musical composition, lyrics, and arrangement
- Note: This musical composition and lyrics were created entirely by human authorship without any AI assistance.
VA APPLICATION:
- Author Created: Entire motion picture, including visual animation, editing, visual effects, and synchronization with sound recording
- Material Excluded: Preexisting sound recording; some visual elements generated by AI based on human-directed prompts and original human-authored source material
- New Material: Original photographs, original drawings and illustrations, original script, lyrics as script, character descriptions, story elements, creative direction, prompt authorship, video editing, cutting, sequencing, transitions, visual effects, audio synchronization, selection, coordination, and arrangement of visual elements
- Note: This motion picture is a product of human authorship. All story elements, character descriptions, lyrics, music, script, photographs, drawings, and creative direction were conceived and authored by the author. AI tools were used solely under the author’s instruction to render outputs based on original human input. The visual elements generated by AI are derivative works based on pre-existing human-authored material. The author maintained continuous creative control throughout the process.
CONCLUSION
The key to successful registration of AI-assisted works is to frame AI as a tool for transforming pre-existing human-authored material, not as an autonomous creator. By consistently asserting human creative control, derivative work status, and compilation authorship, you can maximize copyright protection while properly addressing AI-assisted elements.
Remember: You are the author. AI is just a tool.