Does AI-generated work qualify for copyright protection? Not so far.

Jul 10, 2023 | Law Student Blog,

Does AI-generated work qualify for copyright protection? Not so far.

By Emma Zhuang, Washington University in St. Louis School of Law, LLM candidate, 2023

In February 2023, the United States Copyright Office made a significant decision regarding comic book artist Kris Kashtanova and her graphic novel “Zarya of the Dawn”. The Copyright Office revoked copyright protection for the portions of the comic that were generated using AI technology.

In a reply letter to the application for “Zarya of the Dawn,” the Office stated that the illustrations therein created by the AI drawing tool Midjourney are not eligible for copyright protection. The reason for this rejection was that the human author merely provided textual prompts to the AI drawing tool and was not the “mastermind” behind the final generated images, thus not qualifying as the creator. (Midjourney is a generative artificial intelligence program and service created and hosted by San Francisco-based independent research lab Midjourney, Inc. Midjourney generates images from natural language descriptions, called “prompts”, similar to OpenAI’s DALL-E and Stable Diffusion.)

This ruling represents the first time a US court or government office has made a decision regarding the scope of copyright protection for AI-generated works but it probably won’t be the last.

Summary of events
In September of 2022, Kashtanova obtained a copyright registration for ” Zarya of the Dawn” without disclosing that the illustrations in the book were actually created by AI.

In the next month, the Copyright Office notified Kashtanova that it would reevaluate the registration due to her failure to mention the involvement of an AI drawing tool in her application. The Office said it was review the earlier “Zarya” copyright registration decision after discovering that Kashkanova had posted on Instagram that AI was used to create the images, which it said wasn’t clear in the original application.

On February 21, 2023, the Office sent an e-mail to Kashtanova’s legal representative, stating that the textual content created by Kashtanova in the comic book would remain protected by copyright, but not the AI-generated illustrations.

“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…the images in the Work that were generated by the Midjourney technology are not the product of human authorship.”

The Copyright Office’s letter went on to say that, “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 that she created.”

In this letter, the Office addressed Kashtanova’s argument that the Midjourney drawing was based on the text prompts she had provided, suggesting that the copyright of the final AI-generated work should belong to her. The Copyright Office rejected this claim, affirming that only images created by humans are eligible for copyright protection.

In March of 2023, the Copyright Office issued public guidance telling copyright applicants to make it clear if their work was created with the assistance of AI.

Eligibility for copyright protection determined by the Copyright Office
Under the federal Copyright Act, a work may be registered and protected if it qualifies as an “original work of authorship fixed in any tangible medium of expression.”. The U.S. Supreme Court has explained that the term “original” in this context consists of two components: independent creation and sufficient creativity. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).

Independent Creation/Human Authorship
First, the work must have been independently created by the author.

The Supreme Court has pointed out that if photography was a “merely mechanical” process, “with no place for novelty, invention or originality” by the human photographer, then “in such case a copyright is no protection.” Burrows-Giles Lithographic Co. v. Sarony (1884).

Similarly, the Ninth Circuit Court of Appeals held that a book containing words “‘authored’ by non-human spiritual beings” can only gain copyright protection if there is “human selection and arrangement of the revelations.” Urantia Found. v. Kristen Maaherra (1997). The Urantia court held that “some element of human creativity must have occurred in order for the Book to be copyrightable” because “it is not creations of divine beings that the copyright laws were intended to protect.”

The Copyright Office’s registration practices follow and reflect these court decisions, and it“will refuse to register a claim if it determines that a human being did not create the work.” U.S. Copyright Office, Compendium of U.S. Copyright Office Practices (2021).

Sufficient creativity
Second, the work must possess sufficient creativity. Ms. Kashtanova argued that she used Photoshop to edit the details of some pictures and did not use AI drawing “directly”. However, the Copyright Office believes that these minor modifications do not reflect the author’s own influence on the creative intention.

“The individual providing text prompts to the Midjourney tool did not ‘actually form’ the AI-generated images nor act as the ‘mastermind’ behind the images. While the information in the text prompts may ‘influence’ the AI-generated images, it does not determine the specific outcome.”

The Copyright Office believes that people cannot predict the specific output of the Midjourney tool, and from a copyright protection standpoint, Midjourney significantly differs from other tools used by artists. The process of creating work of art typically begins when an artist has an abstract concept or a creative impulse within their mind that they wish to express. Unlike the capabilities possessed by Midjourney, the tools artists traditionally use do not have the direct ability to transform abstract thoughts into tangible visual expressions. Instead, artists often utilize ordinary art tools such as brushes to meticulously unravel and depict their abstract ideas stroke by stroke. They gradually bring forth and express their inner thoughts on the canvas. They combine several abstract lines to form increasingly representational content. In other words, prior to the emergence of AI painting, artists have always employed this method, slowly materializing their inner content on the canvas. The artists can predict the specific artwork precisely. However, AI painting completely eliminates this process.

Generally, under the U.S. Copyright law, a work must be created by a human with sufficient creativity to obtain a copyright protected by the Office and, if necessary, the courts. In Ms. Kashtanova’s case concerning “Zarya of the Dawn”, while the Copyright Office disclaimed copyright protection for Al works, it concurrently acknowledged a certain degree of copyright protection for the portions of the novel created by Ms. Kashtanova herself. This recognition identified her as the author responsible for the textual content, as well as the selection, coordination, and arrangement of the artistic and visual elements. Stay tuned.

Our summer associate program is supported by:

The Bar Plan logo