The topic of copyright registration for AI-generated works has been popular on this blog, with posts from my colleagues you can find here, here, and here. Today, we bring another update—but still, not a clear answer.
The United States Copyright Office ("the Office") recently sent a letter to a registrant shedding a bit more light on the subject. Ultimately, through this letter, the Office canceled a portion of a copyright registration it had previously granted and allowed a portion to remain in place.
The work at issue is a comic book called “Zarya of the Dawn,” submitted to the Office for registration by artist Kristina Kashtanova. Although Kashtanova wrote the text of the comic book, the illustrations were generated by an AI tool called Midjourney, using Kashtanova’s input. The Office previously allowed registration for the entirety of the work, thinking it was entirely authored by Kashtanova. When the Office discovered that Kashtanova had not disclosed Midjourney’s role in the illustrations, however, the Office initiated cancellation. This week, the Office made its decision. As for the text of the comic book and the selection and arrangement of images and text throughout the comic book, Kashtanova’s registration remains. As for the illustrations themselves, registration is canceled. Speaking to Kashtanova’s assertion that providing input to Midjourney necessarily requires human creativity, the Office had this to say:
“Rather than a tool that Ms. Kashtanova controlled and guided to reach her desired image, Midjourney generates images in an unpredictable way. . . . Midjourney begins the image generation process with a field of visual ‘noise,’ which is refined based on tokens created from user prompts that relate to Midjourney’s training database. The information in the prompt may ‘influence’ [the] generated image, but prompt text does not dictate a specific result. . . . Because of the significant distance between what a user may direct Midjourney to create and the visual material Midjourney actually produces, Midjourney users lack sufficient control over generated images to be treated as the ‘master mind’ behind them.”
The Office likened the situation to commissioning an artist to create an image and providing the artist with similar descriptive prompts for the desired image. In that situation, the artist, not the person providing the prompts, would be entitled to copyright registration as the author (absent more technical requirements to qualify as a work for hire).
So, where does this leave us? It seems that the Office is sticking with the principle that “authors,” for the purpose of copyright protection, are humans. And it seems the Office is dubious about the amount of creativity and control humans retain when using AI tools. But even though the Office’s stance appears firm at the moment, the issue of copyright registration for AI-generated works will continue to unfold. As AI technology and its crowd of proponents rapidly develop, it is unlikely that the Office—much less the courts—will be finished fielding questions like these anytime soon.
We will continue to track these developments and bring you updates along the way.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
