The US Copyright Office has reconsidered the copyright protections granted to Kristina Kashtanova for her comic book last fall Zarya of the dawn, reports Reuters. It contained images created by passing text prompts to Midjourney, an artificial intelligence image generator.
According to this letter (PDF) sent to her attorney by Robert Kasunic, the associate Register of Copyrights, the U.S. Copyright Office has determined that 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 work .”
However, the images themselves are “not the product of human authorship”, and the registration originally granted for them has been cancelled. To justify the decision, the Copyright Office cites past cases where people couldn’t copyright words or songs that credited “non-human spiritual beings” or the Holy Spirit as authors — as well as the infamous incident where a selfie was taken by a monkey .
The Copyright Office says it was not aware that the images were created by Midjourney until registration was granted social media posts by Kashtanova, and sought more information as a result. Both Midjourney and Kashtanova are named on the book’s cover, but according to the letter, that’s the only place Midjourney appears in the 18 pages of material filed with the Copyright Office. cover page of a Work does not constitute notice to the Office that an AI Tool created part or all of the Work.”
In the letter’s conclusion, Kasunic writes that the original certificate was issued based on “inaccurate and incomplete information”, and will therefore be cancelled.
The artist posted about the decision on Instagram, called it a “great day” for people using Midjourney and similar tools. “If you put your photos in a book like Zarya, the arrangement is protected by copyright. The story is copyrighted as long as it is not purely AI-produced,” she wrote, also expressing her disappointment with the Copyright Office’s decision not to grant her copyright to the individual images.
The Copyright Office’s decision takes into account how Midjourney produces image output by breaking down word prompts into tokens that are compared to training data. While noting that other AI programs might work differently, the letter finds, “The fact that Midjourney’s specific output cannot be predicted by users makes Midjourney different for copyright purposes than other tools used by artists.”
The Bureau also rejects claims that its edits to some images make them eligible for copyright, ruling that the changes were “too small and unnoticeable to provide the necessary creativity for copyright protection” or that it does not make its contributions ineffective. could determine on the basis of the information submitted.
Kashtanova’s lawyer Lindberg disagrees, saying: “There are a number of flaws in the Bureau’s arguments, some legal and some factual. However, they all seem to stem from a fundamental factual misunderstanding of the role that randomness plays in Midjourney’s image generation.”
The errors he lists include interpreting whether Kashtanova contributed a “bit” of input or not. Did her quick engineering qualify as mere suggestion, or, as he claims, did her instructions cause Midjourney to “do exactly what it was programmed to do and pull from an artist’s chosen place in its vast probability table to generate an image”?
Claims Lindberg: “AI-assisted art will have to be treated like photography. It’s just a matter of time.”
Kashtanova concluded her post by saying, “My attorneys are reviewing our options to further explain to the Copyright Office how individual images produced by Midjourney are a direct expression of my creativity and are therefore copyrighted.”
