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US Copyright Office Rules Against Protection of AI-Generated Works

The US Copyright Office has ruled against providing protection for works generated by artificial intelligence.

The decision comes in response to a copyright application by Kristina Kashtanova for her comic “Zarya of the Dawn.”

The author herself pens the story in the comic — but creates images using the artificial intelligence art program Midjourney.

Midjourney generates digital art based on words and phrases inputted by the user.

Kashtanova argued that artificial intelligence is just a tool, like a paintbrush or a chisel. The Copyright Office dismissed her argument, asserting, “the fact that Midjourney’s specific output cannot be predicted by users makes Midjourney different for copyright purposes than other tools used by artists.”

“As stated in the Compendium of U.S. Copyright Office Practices (3d ed. 2021), the Office will not register works produced by a machine or mere mechanical intervention from a human author,” the Copyright Office said. “The crucial question is ‘whether the ‘work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.”

In the decision, the office said that they found the images “generated by the Midjourney technology are not the product of human authorship.”

“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,” the decision reads. “That authorship is protected by copyright. However, as discussed below, the images in the Work that were generated by the Midjourney technology are not the product of human authorship. 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.”

The office added that “in cases where non-human authorship is claimed, appellate courts have found that copyright does not protect the alleged creations.”

Though the images are not protected, the agency said that the written element of the comic contains more than the “modicum of creativity” required for protection.

Kashtanova wrote that she intends to appeal in a post on Instagram.


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A post shared by Kris Kashtanova (@kris.kashtanova)

“The Copyright Office didn’t agree to recognize my copyright of the individual images. I think that they didn’t understand some of the technology so it led to a wrong decision,” the comic book creator wrote. “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 direct expression of my creativity and therefore copyrightable.”

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