In September of 2022 author Kristina Kashtanova filed her comic book titled Zarya of the Dawn with the US Copyright Office. The Copyright Office issued a fairly routine copyright registration. There was just one problem: the images with the book were generated by the AI program Midjourney. Kashtanova did not disclose this in her original filing. On February 21, 2023, the government revoked her registration and issued a new one excluding the AI produced elements.
The issue of how intellectual property laws will apply to AI generated works is only going to get more important as these tools proliferate. But for now the Copyright Office has issued important guidance consistent with how they have approached non-human works in the past. The Copyright Office cited numerous precedents that only human authors may produce “works of authorship” eligible for copyright protection. Cases where copyright was denied range from photographs taken by monkeys to books that people claimed were written by ethereal beings.
Importantly, the Copyright Office determined that providing the prompts to Midjourney did not constitute an act of creativity sufficient to make her the author of the images. Rather, even though she claimed to guide the long process through trial-and-error, the images were ultimately “produced by a machine or mere machine process that operates randomly or automatically without any creative input or intervention from a human author” because of its unpredictable nature. Further, courts have stated that an author must “actually form” the work in their mind, not created out of an algorithm and training set. While this interpretation may be challenged in court in the future, the first line in the sand has been drawn for copyrighting AI art.
Notably, the examiner determined that providing the AI prompts did not constitute an act of authorship. Firstly, the AI uses random noise against trained data sets to create an image, which results that often do not match what the person providing the prompts intended. Secondly, commissioning a human artist with a prompt would also not make the one who provided the prompt the author of the piece. This shuts down one of the primary arguments for being allowed to register AI generated works.
However, there is still something for those using AI generated artwork to hold on to. The Office registered the text of the comic, as it was written by a human. But it also registered the “selection, coordination, and arrangement” of the images and text into a coherent story. While someone could copy the artwork in the comic, they could not copy the arrangement of the images wholesale. This provides less protection of the individual pieces of the work, but does provide some protection against a wholesale copying of the comic. This may be enough in some circumstances.
The Law Firm of Dillon McCarthy is excited to keep exploring the frontier of intellectual property law in this new world. If you need help with your intellectual property need, please contact us.
