AI Robot playing chess

AIn’t an Author, yet. AI-assisted comic book receives limited copyright registration.

2 min read

White & Case Tech Newsflash

As anyone who is interested in this space knows, the use of artificial intelligence (AI), including generative AI, has, among other things, resulted in a plethora of novel and complex questions for intellectual property law. From the rise of text-to-image generative AI technologies, such as Midjourney and Stable Diffusion, to ChatGPT and AI-powered Bing search, seemingly endless new developments make our authoring outdated before we hit publish!

In this vein, earlier this week, the United States Copyright Office (USCO) granted artist Kris Kashtanova a limited copyright registration for her comic book, "Zarya of the Dawn," which she created, in part, using Midjourney's AI-powered text-to-image generator.

The USCO concluded that while copyright protects Kashtanova's authorship of the comic book's text and overall selection, coordination, and arrangement of the written and visual elements, the same protection cannot be extended to the images used in the comic book because they were not the product of human authorship.

In reaching its conclusion, the USCO noted that courts interpreting the phrase "works of authorship" have uniformly limited it to the creations of human authors and then considered the general process by which users of Midjourney generate images, as well as Kashtanova's description of the steps she took to obtain the specific images used in her comic book. In both of those processes, the USCO pointed to the user's inability to predict or control the output that they receive. Explaining that Midjourney does not interpret the prompts as specific instructions to create a particular expressive result, the USCO concluded that Midjourney originated the "traditional elements of authorship" in the images and that by typing text prompts into the tool, the user does not "actually form" the generated images and is not the "'master mind' behind them." Ultimately, according to the USCO, this process of generating a desired image using Midjourney is different from the process used by human artists, writers or photographers, and therefore does not qualify for copyright protection.

The USCO's decision is in line with the position it has taken since 2019 in rejecting Stephen Thaler's copyright application to register an artwork titled "A Recent Entrance to Paradise," which lists Thaler's AI system "Creativity Machine" as the author, for lacking the human authorship necessary to support a copyright claim.

In its letter to Kashtanova, the USCO noted that its determination was based on the specific facts surrounding the process she followed to create images with Midjourney, and left open the possibility that its analysis would differ in the case of works produced by AI tools that operate in a different way. For now, however, AI-generated images do not meet the requirement of human authorship necessary to receive copyright protection in the United States.

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