Tag Archives: Midjourney

U.S. Rejects AI Copyright For Famous State Fair Winning Midjourney Art

The U.S. Copyright Office has again rejected copyright protection for art created using artificial intelligence, denying a request by artist Jason M. Allen for a copyright covering an award-winning image he created with the generative AI system Midjourney, Reuters reported.

The office said that Allen’s science-fiction themed image “Theatre D’opera Spatial” was not entitled to copyright protection because it was not the product of human authorship.

According to Reuters, the Copyright Office in February rescinded copyrights for images that artist Kris Kashtanova created using Midjourney for a graphic novel called Zarya of the Dawn dismissing the argument that the images showed Kastanova’s own creative expression. It has also rejected a copyright for an image that computer scientist Stephen Thaler said his AI system created autonomously.

Representatives for Midjourney did not immediately respond for a comment on the decision.

ArsTechnica reported that the US Copyright Office Review Board rejected copyright protection for an AI-generated artwork that won a Colorado State Fair art contest last year because it lacks human authorship required for registration. The win, which was widely covered in the press at the time, ignited controversy over the ethics of AI-generated artwork.

“The Board finds that the Work contains more than a de minimus amount of content generated by artificial intelligence (“Al”), and this content must therefore be disclaimed in an application for registration. Because Mr. Allen is unwilling to disclaim the AI-generated material, the Work cannot be registered as submitted,” the office wrote in its decision.

According to ArsTechnica, in this case, “disclaim” refers to the act of formally renouncing or giving up any claim to the ownership or authorship of the AI-generated content in the work. The office is saying that because the work contains a non-neglible (“more than a de minimus”) amount of content generated by AI, Allen must formally acknowledge that the AI-generated content is not his own creation when applying for registration. As established by Copyright Office precedent and judicial review, US copyright registration for a work requires human authorship.

The U.S.Copyright Review Board posted the following information:

On September 21, 2022, Mr. Allen filed an application to register a two-dimensional artwork claim in the Work. While Mr. Allen did not disclose in his application that the Work was created using an AI system, the Office was aware of the Work because it had garnered national attention for being the first AI-generated image to win the 2022 Colorado State Fair’s annual fine art competition.

Because it was known to the Office that AI-generated material contributed to the Work, the examiner assigned to the application requested additional information about Mr. Allen’s use of Midjourney, a text-to-picture artificial intelligence service, in the creation of the Work. In response, Mr. Allen provided an explanation of his process, stating that he “input numerous revisions and text prompts at least 624 times to arrive at the initial version of the image.” He further explained that, after Midjourney produced the initial version of the Work, he used Adobe Photoshop to remove the flaws and create new visual content and used Gigapixel AI to “upscale” the image, increasing its resolution and size. As a result of these disclosures, the examiner requested that the features of the Work generated by Midjourney be excluded from the copyright claim.

In my opinion, an art contest that was held at a State Fair was not the proper place to submit a piece of artwork that was nearly entirely generated by not one, but two AI generated content sites. The U.S. Copyright Office was correct to exclude Mr. Allen’s “Work” from winning the contest.

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.