The US Copyright Office has reconsidered the copyright protection it granted Kristina Kashtanova for her comic last fall. Zarya of the Dawn, reports Reuters. It featured images created by sending text prompts to Midjourney, an artificial intelligence image generator.
According this letter (PDF) sent to her attorney by Robert Kasunic, Associated Copyright Registry, US Copyright Office has decided 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 the Work. .”
The images themselves, however, “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 previous cases where people failed to copyright words or songs that listed “non-human spirit beings” or the Holy Spirit as the author, as well as the infamous incident in which he took a selfie. for a monkey
The Copyright Office says it only realized the images were produced by Midjourney after the registration was granted, according to Kashtanova’s social media posts, and searched for more information as a result. Both Midjourney and Kashtanova are named on the book’s cover, but according to the letter, that is the only place Midjourney appears in the 18 pages of material submitted to the Copyright Office, and “The fact that the word “Midjourney “appears on the cover of a Work does not constitute notice to the Office that an AI tool created any or all of the Work.”
At the conclusion of the letter, Kasunic writes that the original certificate was issued based on “inaccurate and incomplete information” and therefore will be cancelled.
The artist posted about the decision. On Instagram, calling it a “big day” for people using Midjourney and similar tools. “When you put your pictures in a book like zarya, the arrangement is copyrighted. The story is copyrighted, as long as it is not purely AI-produced,” he wrote, while also expressing his disappointment at the Copyright Office’s decision not to grant him copyright to individual images.
The Copyright Office’s decision takes into account how Midjourney produces image output by splitting word hints into tokens that it compares against training data. While noting that other AI programs might work differently, the letter finds that “the fact that users cannot predict specific output from Midjourney makes Midjourney different for copyright purposes than other tools used by the artists”.
The Office also dismisses the claim that its edits to some of the images make them eligible for copyright, judging that the changes were “too minor and imperceptible to provide the creativity necessary for copyright protection” or that could not determine their contributions based on the information submitted.
Kashtanova’s lawyer, Lindberg, disagrees., saying: “There are a number of errors in the Office’s arguments, some in law and some in fact. However, they all seem to stem from a central factual misunderstanding about the role randomness plays in generating Midjourney images.”
The errors it lists include the interpretation of whether Kashtanova contributed a “modicum” of input or not. Did his prompt engineering qualify as a mere suggestion, or, as he argues, did his instructions cause Midjourney to “do exactly what it’s programmed to do and take from an artist-picked spot on his massive table of probabilities to drive the generation of a image”?
Says Lindberg: “AI-assisted art will have to be treated like photography. It’s just a matter of time.”
Kashtanova closed her post by saying, “My lawyers are discussing our options to explain to the Copyright Office how the individual images produced by Midjourney are a direct expression of my creativity and therefore subject to copyright.”
