Ruling offers a glimpse into how generative AI content could be treated in the future.

Ben Wodecki, Jr. Editor

February 23, 2023

3 Min Read

At a Glance

  • U.S. Copyright Office rules that AI-generated art cannot have copyright protection.
  • Creator of Zarya of the Dawn retains copyright for the rest of the work that is expressly hers.
  • Author and legal team exploring options to address the ruling's definition of human involvement in AI image generation.

A comic book with AI-generated art has received limited copyright protection from the U.S. Copyright Office, a ruling that offers a glimpse into how generative AI content could be treated in the future.

Kris Kashtanova, the creator of Zarya of the Dawn, initially received full copyright protection for the comic book last September because the agency was not aware that it included AI-generated art.

But after finding out that the comic did include AI-generated art, the agency launched a review and ruled that the text and the whole of the work as a compilation will retain protection, while the images which were generated by the text-to-image AI tool Midjourney, lost protection as they “are not the product of human authorship.”

“We intend to cancel the original certificate issued to Ms. Kashtanova and issue a new one covering only the expressive material that she created,” according to a letter from the agency.

Reacting to the news, Kashtanova said via Twitter that the result was “a great day for everyone that is creating using Midjourney and other tools.”

“When you put your images into a book like Zarya, the arrangement is copyrightable. The story is copyrightable as well as long as it’s not purely AI-produced,” Kashtanova said.

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Not a simple issue

Related:US grants copyright protection to AI-generated comic book

The Zarya author’s legal team has argued that Kashtanova wrote the whole comic and also arranged its text and images. Moreover, she had no reason to disclose information on the tools used to create the work.

Kashtanova’s lawyer, Van Lindberg, had contended that photographers do not disclose the use of Photoshop to create or modify an image, so why should Kashtanova? The legal team also argued that Kashtanova did not merely type a simple prompt into Midjourney to generate artwork, but “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 computer programs she used, including the Midjourney image creation service, were but ‘an assisting instrument’ to Kashtanova,” according to the response.

In its final decision, however, the U.S. Copyright Office ruled that the images generated by Midjourney contained within the comic book are “not original works of authorship protected by copyright.”

“The process by which a Midjourney user obtains an ultimate satisfactory image through the tool is not the same as that of a human artist, writer, or photographer. The initial prompt by a user generates four different images based on Midjourney’s training data,” the agency said.

“While additional prompts applied to one of these initial images can influence the subsequent images, the process is not controlled by the user because it is not possible to predict what Midjourney will create ahead of time.”

Kashtanova might have guided the structure and content of each image, but it was Midjourney that “originated the traditional elements of authorship in the images.”

Reacting to the decision, Lindberg wrote that he was surprised by it, but said the ruling does not resolve the core questions about copyright in AI-assisted works.

“It is the most limited a copyright registration can be,” he said, adding that the ruling stems from an “actual misunderstanding of the role that randomness plays in Midjourney's image generation.”

“When the Office compares the prompt to a ‘suggestion’ like a patron might give to a painter, it is anthropomorphizing the tool and coming to an invalid conclusion. Midjourney can't take ‘suggestions.’ It can only do exactly as it is programmed to do and pull from an artist-chosen place in its massive table of probabilities to drive the generation of an image.”

The attorney also said the agency “incorrectly focused on the output of the tool rather than the input from the human.”

Kashtanova's legal team is exploring options to further explain to the Copyright Office how individual images produced by Midjourney are a direct expression of her creativity and therefore can be copyrighted.

About the Author(s)

Ben Wodecki

Jr. Editor

Ben Wodecki is the Jr. Editor of AI Business, covering a wide range of AI content. Ben joined the team in March 2021 as assistant editor and was promoted to Jr. Editor. He has written for The New Statesman, Intellectual Property Magazine, and The Telegraph India, among others. He holds an MSc in Digital Journalism from Middlesex University.

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