Last October, I received an email with a hell of an opening line: “I fired a nuke at the US Copyright Office this morning.”
The message was from Elisa Shupe, a 60-year-old retired US Army veteran who had just filed a copyright registration for a novel she’d recently self-published. She’d used OpenAI’s ChatGPT extensively while writing the book. Her application was an attempt to compel the US Copyright Office to overturn its policy on work made with AI, which generally requires would-be copyright holders to exclude machine-generated elements.
That initial shot didn’t detonate—a week later, the USCO rejected Shupe’s application—but she ultimately won out. The agency changed course earlier this month after Shupe appealed, granting her copyright registration for AI Machinations: Tangled Webs and Typed Words, a work of autofiction self-published on Amazon under the pen name Ellen Rae.
The novel is influenced by Shupe’s eventful life, including her adovacy for a more inclusive gender recognition. The registration offers insight into how the USCO handles artificial intelligence, particularly as more individuals incorporate AI tools into their artistic work. The novel is among the first artworks to receive a copyright for AI-organized text.
“The Copyright Office is finding it tough to set boundaries,” says Erica Van Loon, an intellectual property lawyer and a partner at Nixon Peabody. Shupe’s case illuminates some aspects of this struggle as her registration approval came with a substantial condition.
The USCO’s official notice providing Shupe with copyright registration for her book does not credit her as the author of the full text as per the traditional approach for written works. Instead, she is acknowledged as the author of “selection, coordination, and arrangement of text generated by artificial intelligence.” This statement implies that the book cannot be duplicated without approval, but the individual sentences and paragraphs are not copyrighted and could, in theory, be rewritten and published as a separate book.
The copyright registration was retroactive to October 10, the date when Shupe initially attempted to register her work. The agency has chosen not to comment on this story. Nora Scheland, an agency spokesperson, states, “The Copyright Office refrains from commenting on particular copyright registrations or pending registration applications.” President Biden’s executive order on AI last fall urged the agency to recommend to the White House the “extent of protection for works created using AI.”
Although Shupe’s limited copyright registration is notable, she originally asked the USCO to open a more significant path to copyright recognition for AI-generated material. “I seek to copyright the AI-assisted and AI-generated material under an ADA exemption for my many disabilities,” she wrote in her original copyright application.
Shupe believes fervently that she was only able to complete her book with the assistance of generative AI tools. She says she has been assessed as 100 percent disabled by the Department of Veterans Affairs and struggles to write due to cognitive impairment related to conditions including bipolar disorder, borderline personality disorder, and a brain stem malformation.
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She takes great satisfaction in the completed project and perceives the utilization of a text generator as an alternative but equally valuable manner of articulating ideas. “The action doesn’t just involve pressing ‘generate’ and acquiring something publish-worthy. That might be a possibility in the future, but we are quite distant from that reality,” she states. She spent no less than 14 hours daily working on her draft.
When her original application was rejected, Shupe got in touch with Jonathan Askin, the creator of the Brooklyn Law Incubator and Policy Clinic at Brooklyn Law School. This institution handles cases concerning budding technology and policy matters free of cost. Askin, along with Brooklyn Law student Sofia Vescovo, worked on Shupe’s case and lodged an appeal with the USCO in January.
The appeal was based on Shupe’s contention related to her disabilities. It stated that she should be given copyright as she applied ChatGPT as a helping technology for communication. Her use of OpenAI’s chatbot was compared to the use of a prosthetic leg by an amputee. The appeal alleged that the USCO had “discriminated against her due to her disability.”
The appeal from Brooklyn Law suggested that Shupe should be given copyright for the compilation of the book as she had arranged and chosen specific pieces of text generated by the AI. The appeal provided detailed information about how Shupe used and edited ChatGPT.
In the appeal, the unedited output from the machine is compared to the final published version of the book by Shupe. She made adjustments to almost every sentence, ranging from word choice to sentence structure. For instance, the sentence “Mark eyed her, a complex mix of concern and annoyance evident in his gaze” was changed to “Mark studied her, his gaze reflecting both worry and irritation.”
The appeal also referred to another lawsuit related to AI copyright about the graphic novel Zarya and the Dawn, which utilizes graphics created by AI from Midjourney. In February 2023, Kris Kashtanova, the author, was awarded copyright for the AI-generated images in the book, even though the images themselves could not be copyrighted.
Shupe’s request for copyright was granted by the USCO, although it did not discuss the disability claim. It stood by the argument that authorship for “selection, coordination, and arrangement of text generated by artificial intelligence” could be attributed to Shupe. Her copyright registration was retroactively dated to October 10, 2023, the day she initially tried to register her work. This grants her ownership of the overall work, preventing unauthorised full reproduction of the entire book. However, it does not provide copyright protection for individual sentences within the book.
“Overall, we are extremely satisfied,” says Vescovo. The team felt that copyrighting the book’s compilation would provide peace of mind against out-and-out reproduction of the work. “We really wanted to make sure we could get her this protection right now.” The Brooklyn Law team hope Shupe’s approval can serve as a blueprint for other people experimenting with AI text generation who want some copyright protection.
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“I’m going to take this as a win for now,” Shupe says, even though she knows that “in some ways, it’s a compromise.” She maintains that the way she uses ChatGPT more closely resembles a collaboration than an automated output, and that she should be able to copyright the actual text of the book.
Matthew Sag, a professor of law and artificial intelligence at Emory University, calls what the USCO granted Shupe “thin copyright”—protection against full-fledged duplication of materials that doesn’t stop someone from rearranging the paragraphs into a different story. “This is the same kind of copyright you would get in an anthology of poetry that you didn’t write,” Sag says.
Erica Van Loon agrees. “It’s hard to imagine something more narrow,” she says.
Shupe is part of a larger movement to make copyright law friendlier to AI and the people who use it. The Copyright Office, which both administers the copyright registration system and advises Congress, the judiciary system, and other governmental agencies on copyright matters, plays a central role in determining how works that use AI are treated.
Although it continues to define authorship as an exclusively human endeavor, the USCO has demonstrated openness to registering works that incorporate AI elements. The USCO said in February that it has granted registration to over 100 works with AI incorporated; a search by WIRED found over 200 copyright registration applications explicitly disclosing AI elements, including books, songs, and visual artworks.
One such application came from Tyler Partin, who works for a chemical manufacturer. He recently registered a tongue-in-cheek song he created about a coworker, but excluded lyrics that he spun up using ChatGPT from his registration. Partin sees the text generator as a tool, but ultimately doesn’t think he should take credit for its output. Instead, he applied only for the music rather than the accompanying words. “I didn’t do that work,” he says.
But there are others who share Shupe’s perspective and agree with her mission, and believe that AI-generated materials should be registrable. Some high-profile attempts to register AI-generated artworks have resulted in USCO refusals, like artist Matthew Allen’s effort to get his award-winning artwork Théâtre D’opéra Spatial copyrighted last year. AI researcher Stephen Thaler has been on a mission for years to prove that the AI system he invented deserves copyright protections of its own.
Thaler is currently appealing a ruling in the US last year that rebuffed his attempt to obtain copyright on behalf of his machine. Ryan Abbott, the lead attorney on the case, founded the Artificial Inventor Project, a group of intellectual property lawyers who file test cases seeking legal protections for AI-generated works.
Abbott is a supporter of Shupe’s mission, although he’s not a member of her legal team. He isn’t happy that the copyright registration excludes the AI-generated work itself. “We all see it as a very big problem,” he says.
Shupe and her legal helpers don’t have plans to push the ADA argument further by contesting the USCO’s decision, but it’s an issue that is far from settled. “The best path is probably to lobby Congress for an addition to the ADA statute,” says Askin. “There’s a potential for us to draft some legislation or testimony to try to move Congress in that direction.”
Shupe’s qualified victory is still a significant marker in how the Copyright Office is grappling with what it means to be an author in the age of AI. She hopes going public with her efforts will reduce what she sees as a stigma against using AI as a creative tool. Her metaphorical nuke didn’t go off, but she has nonetheless advanced her cause. “I haven’t been this excited since I unboxed a Commodore 64 back in the 1980s and, after a lot of noise, connected to a distant computer,” she says.
