Getty Images
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 draws from Shupe’s eventful life, including her advocacy for more inclusive gender recognition. Its registration provides a glimpse of how the USCO is grappling with artificial intelligence, especially as more people incorporate AI tools into creative work. It is among the first creative works to receive a copyright for the arrangement of AI-generated text.
“We’re seeing the Copyright Office struggling with where to draw the line,” intellectual property lawyer Erica Van Loon, a partner at Nixon Peabody, says. Shupe’s case highlights some of the nuances of that struggle—because the approval of her registration comes with a significant caveat.
The USCO’s notice granting Shupe copyright registration of her book does not recognize her as author of the whole text as is conventional for written works. Instead she is considered the author of the “selection, coordination, and arrangement of text generated by artificial intelligence.” This means no one can copy the book without permission, but the actual sentences and paragraphs themselves are not copyrighted and could theoretically be rearranged and republished as a different book.
The agency backdated the copyright registration to October 10, the day that Shupe originally attempted to register her work. It declined to comment on this story. “The Copyright Office does not comment on specific copyright registrations or pending applications for registration,” Nora Scheland, an agency spokesperson, says. President Biden’s executive order on AI last fall asked the US Patent and Trademark Office to make recommendations on copyright and AI to the White House in consultation with the Copyright Office, including on the “scope of protection for works produced 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.
