Kris Kashtanova
On Tuesday, the US Copyright Office announced that the images created using the AI-powered Midjourney image generator for the comic book. Zarya at Dawn should not be given copyright protection, and the copyright protection of the images will be revoked.
In a letter addressed to the author’s attorney Kris Kashtanova obtained by Ars Technica, the office cited “incomplete information” in the original copyright registration as the reason it plans to cancel the original registration and -issue a new one that excludes protection for AI-generated. pictures. However, the new registration will only contain the text of the work and the arrangement of images and text. Initially, Kashtanova did not disclose that the images were created by an AI model.
“We have concluded that Ms. Kashtanova is the author of the text of the Work as well as the selection, coordination, and arrangement of the written and visual elements of the Work,” the copyright letter reads. “That authorship is protected by copyright. However, as discussed below, the Work images generated by Midjourney technology are not the product of human authorship.”
Last September, in a story that first appeared in Ars Technica, Kashtanova went public with that Zarya at Dawn, which includes comic-style illustrations generated from prompts using a hidden AI diffusion process, has been granted copyright registration. At the time, we considered this a precedent-setting case for the registration of artwork created by latent diffusion.
However, as the letter explains, after the Copyright Office learned that the work included AI-generated images through Kashtanova’s social media posts, it issued a notice to Kashtanova in October stating that it intends to cancel the registration unless he provides additional information showing why the registration should not be cancelled. Kashtanova’s attorney responded to the letter in November arguing that Kashtanova was the author of every aspect of the work, with Midjourney serving only as an auxiliary tool.
That argument wasn’t good enough for the Copyright Office, which explained in detail why it believes AI-generated works should not be afforded copyright protection. In a key quote provided below, the Office emphasizes the machine-generated origins of the images:
Based on the record before it, the Office concludes that the images created by The Midjourney contained in the Work are not original works of authorship protected by copyright. See cOMPENDIUM (THIRD ) § 313.2 (providing that “the Office shall not register acts produced by a machine or mechanical process that operates randomly or automatically without any creative input or intervention from a human author”). Although he claims to have “guided” the structure and content of each image, the process described in the Letter of Kashtanova explaining that it was Midjourney—not Kashtanova—who created the “traditional elements of authorship” in the pictures.
The letter provides additional analogies for understanding why the Copyright Office thinks Kashtanova is not the creator of the images, including the idea of hiring someone to create images using descriptions and creating a text-based image search on the Internet. The general argument of the letter could serve as an important legal precedent for future attempts to copy AI-generated images.
In an Instagram post, Kashtanova reacted to the letter by framing it as a total victory for AI-enhanced artists. He says that the ruling is “good news” in the sense that it protects the story of the comic book and the arrangement of the image, which “covers a lot of uses for people in the AI art community.”
But on the issue of loss of copyright protection for individual images, Kashtanova says that she does not stop the fight:
I am disappointed in one aspect of the decision. The Copyright Office has not agreed to recognize my copyright on individual images. I think they didn’t understand some of the technology so it led to a wrong decision. It is important to understand that the output of a Generative AI model depends directly on the artist’s creative input and is not random. My lawyers are looking at our options to further explain to the Copyright Office how the individual images created by Midjourney [a] direct expression of my creativity and therefore copyrightable.
However introductions for earlier algorithm generated artwork received copyright protection, this decision means that AI-generated imagery, without human-authored elements, cannot be copyrighted today in the United States. The Copyright Office’s ruling on the matter is likely to stand unless it is challenged in court, changed by law, or reexamined in the future.
It’s possible that the decision could later be reconsidered as a result of a cultural shift in how society views AI-generated art — one that could allow for a new interpretation by various members of the US Copyright Office over the next decade. Currently, AI-powered artwork is still a novel and poorly understood technology, but eventually it will become the standard way to display visual arts. Not allowing for copyright protection may prevent its use by large and powerful media conglomerates in the future. So the story of AI and copyright is far from over.