On 21 February 2023 the United States Copyright Office made a significant decision in the realm of AI, copyright and artwork. The Copyright Office took the unusual step of cancelling Kristina Kashtanova's September 2022 copyright registration for her comic book Zarya of the Dawn due to her use of AI-generated artwork.
Ms. Kashtanova had previously successfully registered her comic book with the US Copyright Office. The Copyright Office subsequently became aware of statements she made on social media which disclosed her use of Midjourney version 5, an artificial intelligence image generator, to create the artwork in her comic book. The Copyright Office reconsidered that the information provided by Ms. Kashtanova in her original application was "inaccurate and incomplete", and used its powers under 37 C.F.R. § 201.7(c)(4) (link) to cancel the copyright registration in respect of the artwork. Ms. Kashtanova retained copyright in the text and arrangement elements of the work.
Ms. Kashtanova's counsel had argued that, citing the Supreme Court in Burrow-Giles Lithographic Co. v. Sarony (111 U.S. 53, 4 S. Ct. 298 (1884)), 'the author is the [person] who really represents, creates, or gives effect to the idea, fancy, or imagination.' To that end, Ms. Kashtanova had in their view "engaged in a creative, iterative process which she describes as 'working with the computer to get closer and closer to what I wanted to express.'"
However, the Copyright Office disagreed and considered that, despite Ms. Kashtanova’s input of guiding prompt text, the output of Midjourney is too unpredictable to be merely a 'tool' to 'dictate a specific result' (in contrast to a camera for example). The Copyright Office therefore concluded that while "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 images in the Work that were generated by the Midjourney technology are not the product of human authorship."
The Zarya of the Dawn decision has important implications for the validity of copyright registration for AI-generated artwork and the legal obligations of artists regarding disclosing their use of AI tools. This decision was made in the shadow of yesterday’s latest release of version 4 of the large language model ChatGPT, which has shown impressive capabilities in generating 'creative' text works.
As legal scholars begin to explore the issues and implications that arise from this decision, it is important to put this into the context of new generative AI tools like ChatGPT that have recently proliferated among the creative community. We certainly expect to see more such challenges coming through the courts shortly, and practitioners will be looking to both the judiciary and legislature for guidance on these issues.
Read the Copyright Office's decision here.
