Copyright Office Denies Protection for AI-Generated Images

The US Copyright Office has cancelled an attempt to register images created using an artificial intelligence (AI) tool.

In 2022, Kristina Kashtanova sought and received copyright registration for an 18-page comic book titled Zarya of the Dawn. On the application, Kashtanova was identified as the sole author of the work.

Soon after the work was registered, a reporter contacted the Copyright Office in response to public comments Kashtanova made on Instagram about the creation of the work:

I got Copyright from the Copyright Office of the USA on my Ai-generated graphic novel. I was open how it was made and put Midjourney on the cover page. It wasn’t altered in any other way. Just the way you saw it here.

I tried to make a case that we do own copyright when we make something using AI. I registered it as visual arts work. My certificate is in the mail and I got the number and a confirmation today that it was approved.

My friend lawyer gave me this idea and I decided to make a precedent.

Midjourney is an independent research lab that produces an artificial intelligence program under the same name that creates images from textual descriptions, similar to OpenAI's DALL-E and Stable Diffusion.

Kashtanova stated that the AI tool had been used to create some of the content in the work – something not disclosed in the copyright registration application.

Kashtanova did write the comic book story, create the layout, and make artistic choices to piece the images together, according to Ars Technica.

As Ars Technica noted, Zarya’s main character has an “uncanny” resemblance to the actress Zendaya, and “AI artists often use celebrity names in their prompts to achieve consistency between images, since there are many celebrity photographs in the data set used to train Midjourney.”

Apparently, the Registration Specialist at the Copyright Office wasn’t familiar with Midjourney and didn’t realize that it was an AI engine used to create art.

The Copyright Office then wrote to notify Kashtanova that it was cancelling the registration because Kashtanova wasn’t the sole author of the work. “At a minimum,” wrote the Copyright Office, “the claim should have been limited to exclude non-human authorship.”

The Copyright Office explained that

The U.S. Copyright Office will register an original work of authorship only if the work was created by a human being. U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 306 (3d ed. 2021). 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). See also 17 U.S.C. § 102(a); Compendium (Third) § 306.

Thus,

Consistent with the law, the Office will not knowingly register works produced by a machine or mere mechanical process that operates randomly or automatically without sufficient creative input or intervention from a human author.

(Famously, the Copyright Office refused registration for a selfie taken by a monkey.)

Thus, the Office found that the comic book shouldn’t have been registered and gave Kashtanova 30 days to respond.

Kashtanova’s responded with a letter claiming “Kashtanova’s authorship of the entirety of the Work, despite her use of Midjourney’s image generation service as part of her creative process.”

According to the lawyer,

Kashtanova had no reason to recite any limitations of the claim or to provide notes to the Office, for the same reason that photographers do not typically recite that they “used a camera” to create an image and authors do not disclaim portions of an image that they used Adobe Photoshop to create or modify.

The lawyer argued that

The crucial question is “whether the ‘work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.”

The lawyer claimed that

Kashtanova engaged in a creative, iterative process which she describes as “working with the computer to get closer and closer to what I wanted to express.” This process included multiple rounds of composition, selection, arrangement, cropping, and editing for each image in the Work. Her efforts make her the author of the Work, including authorship of each image in the Work.

The lawyer included copies of dozens of intermediate versions of an image used in the comic book, to show how “Different elements of the final image are created, developed, refined, and relocated.”

The lawyer stated that “each iteration of each image is the result of a unique set of inputs composed by Kashtanova.”

The lawyer also said that Kashtanova selected, sequenced, arranged, and cropped the AI-generated images.

In a letter of February 21, 2023, Robert Kasunic, the Associate Register of Copyrights and Director of Registration Policy and Practice, responded as follows:

We conclude that Ms. Kashtanova is the author of the Work’s text as well as the selection, coordination, and arrangement of the Work’s written and visual elements. That authorship is protected by copyright.

However, said Kasunic, “the images in the Work that were generated by the Midjourney technology are not the product of human authorship” and thus not eligible for copyright protection.

Kasunic distinguished Midjourney from other tools used by creators:

Rather than a tool that Ms. Kashtanova controlled and guided to reach her desired image, Midjourney generates images in an unpredictable way. Accordingly, Midjourney users are not the “authors” for copyright purposes of the images the technology generates. As the Supreme Court has explained, the “author” of a copyrighted work is the one “who has actually formed the picture,” the one who acts as “the inventive or master mind.” … A person who provides text prompts to Midjourney does not “actually form” the generated images and is not the “master mind” behind them.

Importantly, said Kasunic,

The fact that Midjourney’s specific output cannot be predicted by users makes Midjourney different for copyright purposes than other tools used by artists.

The decision may be appealed.