US Copyright Office: You Can’t Copyright AI-generated Images

Are AI-generated images eligible for copyright protection? This is the question that the US Copyright Office recently had to answer in relation to Kristina Kashtanova’s comic book, Zarya of the Dawn. Read on to find out the Copyright Office’s decision and what it could mean for the future of AI-assisted art.

The Copyright Office Decision
The US Copyright Office recently reconsidered the copyright protection it granted last fall to Kristina Kashtanova for her comic book Zarya of the Dawn. The comic book featured pictures created by feeding text prompts to Midjourney, an artificial intelligence image generator. According to the letter sent to her lawyer by Robert Kasunic, the associate Register of Copyrights, the US Copyright Office has decided that 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.” However, the images themselves “are not the product of human authorship,” and the registration originally granted for them has been canceled.

The Copyright Office’s Explanation
To justify the decision, the Copyright Office cites previous cases where people weren’t able to copyright words or songs that listed “non-human spiritual beings” or the Holy Spirit as the author — as well as the infamous incident where a selfie was taken by a monkey. The Copyright Office says it only became aware the images were produced by Midjourney after the registration was granted, based on social media posts by Kashtanova. Both Midjourney and Kashtanova are named on the cover of the book, but according to the letter, that’s the only place Midjourney appears in the 18 pages of material submitted to the Copyright Office.

The Copyright Office also dismisses the claim that her edits to some of the images make them eligible for copyright, judging the changes were either “too minor and imperceptible to supply the necessary creativity for copyright protection” or that it couldn’t determine her contributions based on the information submitted.

Kashtanova’s Response
The artist posted about the decision on Instagram, calling it a “great day” for people using Midjourney and similar tools. However, she also expressed disappointment at the Copyright Office’s decision not to give her copyright to the individual images. Kashtanova’s lawyer Lindberg disagrees with the Copyright Office’s decision, citing a number of factual and legal errors. He argues that her prompt engineering qualified as more than a mere suggestion, and that her instructions caused Midjourney to “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.”

What This Could Mean for the Future
Lindberg believes that AI-assisted art is going to need to be treated like photography. The Copyright Office’s decision in relation to Kristina Kashtanova’s comic book is a step towards that, but it’s clear that there’s still some way to go. Kashtanova closed her post by saying that her lawyers are looking at their options to further explain to the Copyright Office how individual images produced by Midjourney are direct expression of her creativity and therefore copyrightable.

The US Copyright Office’s decision in relation to Kristina Kashtanova’s comic book is an important one, and it’s sure to have a major impact on the future of AI-assisted art. It’s clear that there’s still some way to go in terms of understanding how copyright law applies to AI-generated images, but this decision is a big step towards that.

Categorized as AI

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