Rights rollback for novel's AI images poses more questions

US Copyright Office reviewed case after use of AI tool came to light | Decision to retract copyright for the AI-generated images brings the crossover between human and AI authorship under the spotlight.

The US Copyright Office ( USCO) has partially rescinded the copyright for a graphic novel which used an artificial intelligence (AI) tool to generate the book’s images.

New York-based Kris Kashtanova obtained copyright protection for Zarya of the Dawn in September 2022, after describing herself as the sole author.

However, shortly after this, a reporter contacted the USCO to highlight that Kashtanova describes the book as AI-assisted on her social media channels and that she had used the text-to-image AI tool, Midjourney to create the images.

The USCO wrote to Kashtanova in October 2022 to inform her that the copyright registration would be cancelled, “...because, by your own admission, you are not the sole author of the entire work and, at a minimum, the claim should have been limited to exclude non-human authorship”.

The office concluded that the information in Kashtanova’s application was “incorrect or, at a minimum, substantively incomplete”.

She was given 30 days to respond in writing to “show cause why this registration should not be cancelled”.

Compilation claims

Van Lindberg, partner at Taylor English and counsel for Kashtanova, replied to the office the following month, affirming Kashtanova’s authorship of the entirety of the work, “despite her use of Midjourney’s image generation service as part of her creative process”.

He argued that the various press accounts describing the creation of Zarya “oversimplified” the author’s process, and explained that since the work took more than a year from conception to creation, “it was not an unguided, ‘push-button’ process”.

He maintained that the work, including the images, should be registrable as a compilation under the US Copyright Act.

At the time, he wrote on his LinkedIn page that he and his client were making the case “that even the minimal human input needed to use tools like the Midjourney service is sufficient to pass the bar for human authorship.”

However, the USCO decision, set out in a letter to Lindberg this week (February 21), refused this appeal, instead confining copyright to the text and the whole work as a compilation.

It concluded that Kashtanova is the author of the text as well as the “selection, coordination, and arrangement of the work’s written and visual elements”.

But the images that were generated by Midjourney are not the product of human authorship, it added—as such, it would cancel the original certificate issued to Kashtanova and issue a new one covering only the expressive material that she created.

While he welcomed the decision, Lindberg wrote in a personal blog that it “doesn't resolve the core questions about copyright in AI-assisted works.”

He wrote that he was “surprised” at the result, referring to Thaler and the USCO's recent filing in which it said it was “preparing registration guidance for works generated by using AI.”

“The question is whether the images Kris [Kashtanova] generated using Midjourney are copyrightable. If the Office is preparing guidance to allow registration of AI-assisted works, that strongly suggests that the USCO believes there is some threshold of human involvement that is sufficient to allow registration.

“The Office recognises that Kris had input into the images that were created for Zarya of the Dawn, but it just doesn't seem to feel that the human input is sufficient.”

An AI art win?

Kashtanova, who describes herself as an artist and AI (machine learning) educator, described the decision largely as a win for the “AI art community”.

She wrote on her Instagram feed this week: “This is a great day for everyone that is creating using Midjourney and other tools. When you put your images into a book like Zarya, the arrangement is copyrightable.

“The story is copyrightable as well as long as it’s not purely AI produced. That covers a lot of uses for the people in the AI art community.”

However, she added: “I was disappointed in one aspect of the decision. The Copyright Office didn't agree to recognise my copyright of the individual images. I think that they didn't understand some of the technology so it led to a wrong decision.

“It is fundamental to understand that the output of a generative AI model depends directly on the creative input of the artist and is not random.

“My lawyers are looking at our options to further explain to the Copyright Office how individual images produced by Midjourney are [a] direct expression of my creativity and therefore copyrightable.”

Many respondents to the post disagreed that the AI-generated images could be classed as human-generated creativity. For example, ‘tenkaichi_z’ commented: “Your ‘creativity’ is not creative at all, really, unless you're using hyper-unique prompts.

“I love Midjourney myself, but we're not *that* creative for using it. Let's not get things confused.”

Caleb Green, associate attorney at Dickinson Wright, told WIPR that companies or individuals using AI may face challenges in asserting copyright protection of AI-created works.

He pointed out that, given the current binding rule in the US that only “works of human authorship” are subject to copyright protection, AI-created works are therefore not protected in the same way.

“Although many argue that the US Constitution does not limit copyright to human-created works, as it stands, the US Copyright Act is clear—no works by non-human authors will enjoy copyright protection,” he noted.

The case comes as questions in the IP community remain about the role of AI and associated IP protections in the authorship of creative works.

Earlier this month, Getty Images escalated its high-profile dispute with an AI developer over the alleged infringement of millions of images used for the training of an art tool, Stable Diffusion. A trio of artists have also filed a class action citing infringement against the developer Stability AI.

The AI developer has argued that these lawsuits represent “a misunderstanding of how generative AI technology works and the law surrounding copyright”, and undermine the “vast potential generative AI has to expand the creative power of humanity”.

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