A New Dawn For Copyright In AI-Generated Works?

• Jurisdiction: United States,Federal
• Law Firm: Pillsbury Winthrop Shaw Pittman
• Subject Matter: Intellectual Property, Technology, Copyright, New Technology
• Author: Mr Sam Eichner and Aya Hatori
• Published date: 16 March 2023

On February 21, 2023, the Copyright Office eclipsed its prior decisions in the area of AI authorship when it partially cancelled Kristina Kashtanova's registration for a comic book titled Zarya of the Dawn. In doing so, the Office found that the AI program Kashtanova used'Midjourney'was primarily responsible for the visual output that the Office chose to exclude from Kashtanova's registration. (Midjourney is an AI program that creates images from textual descriptions, much like OpenAI's DALL-E.) The decision not only highlights tension between the human authorship requirements of copyright law and the means of expression that authors can use, but it also raises the question: Can AI-generated works ever be protected under U.S. copyright law?

The Decision
On September 15, 2022, the U.S. Copyright Office issued a registration for Kashtanova's comic book, Zarya of the Dawn, which consists of text written by Kashtanova and images created using Midjourney. Thereafter, the Office learned of Kashtanova's public statements that she used an AI program to create Zarya of the Dawn, initiated cancellation of the registration, and provided Kashtanova with an opportunity to show cause why the registration should not be canceled. In response, Kashtanova argued that she used Midjourney the way a photographer uses a camera, or the way a graphic designer uses Adobe Photoshop, and that her "core creative input"'i.e., text "prompts" and "previously developed" images'as well as her "iterative process" of selecting Midjourney images led to her creation of Zarya of the Dawn.

While the Office found that Kashtanova's selection and arrangement of text and images within the Zarya of the Dawn comic book was protectable, it found that Kashtanova did not author the actual images within the comic book because Midjourney generates images in an "unpredictable way," such that Kashtanova did not "actually form" those images. The Office based its conclusion on "the significant distance between what a user may direct Midjourney to create and the visual material Midjourney actually produces" finding that "Midjourney users lack sufficient control over generated images to be treated as the 'master mind' behind them." The Office also rejected Kashtanova's argument that she authored the images through her "creative, human-authored prompts" because Midjourney prompts are mere "suggestions" not "orders."

Analysis
While consistent with the human authorship requirement reflected in previous Office and...