AI-Created Images Lose U.S. Copyrights In Test For New Technology

Images in a graphic novel that were created using the artificial-intelligence system Midjourney should not have been granted copyright protection, the U.S. Copyright Office said in a letter seen by Reuters.

“Zarya of the Dawn” author Kris Kashtanova is entitled to a copyright for the parts of the book Kashtanova wrote and arranged, but not for the images produced by Midjourney, the office said in its letter, dated Thursday.

According to Reuters, the decision is one of the first by a U.S. court or agency on the scope of copyright protection for works created with AI, and comes amid the meteoric rise of generative AI software like Midjourney, Dall-E and ChatGPT.

The Copyright Office told Kashtanova in October it would reconsider the book’s copyright registration because the application did not disclose Midjourney’s role.

The United States Copyright Office sent a letter to Mr. Van Lindberg. From the letter:

“The United States Copyright Office has reviewed your letter dated November 21, 2022, responding to our letter to your client, Kristina Kashtanova, seeking additional information concerning the authorship of her work, titled Zarya of the Dawn (the “Work”). Ms. Kashtanova had previously applied for and obtained a copyright registration for the World, Registration #VAu001480196. We appreciate the information provided in your letter, including your description of the operation of the Midjourney’s artificial intelligence (“AI”) technology and how it was used by your client to create the Work.

The Office has completed its review of the Work’s original registration application and deposit copy, as well as the relevant correspondence in the administrative record. 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, as discussed below, the images in the Work that were generated by the Midjourney technology are not the product of human authorship. Because the current registration for the Work does not disclaim its Midjourney-generated content, we intend to cancel the original certificate issued to Ms. Kashtanova and issue a new one covering only the expressive material she created…

…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…

…Nor does the Office agree that Ms. Kashtanova’s use of textual prompts permits copyright protection of restyling images because the images are the visual representation of “creative, human-authored prompts.” Because Midjourney starts with randomly generated noise that evolves into a final image, there is no guarantee that a particular prompt will generate any particular visual output. Instead, prompts function closer to suggestions than orders, similar to its contents…”

In my opinion, this decision is a huge win for all of the artists whose work Midjourney was given to iterate upon. From what I’ve read, the artists whose work Midjourney was trained on were not asked permission for use of their artwork by Midjourney, (or other AI art programs), and certainly were not paid for the use of their work.

I fully agree that Ms. Kashtanova wrote the text of her comic book herself. However, she should not have relied entirely on Midjourney to create the images in her comic book. There are plenty of human artists out there whom she could have hired instead.