On February 21, 2023, the U.S. Copyright Office issued a decision granting limited copyright protection for “Zarya of the Dawn,” an 18-page comic book containing images generated with artificial intelligence (AI) technology. While the decision is limited to the specific facts of this case, it provides further insight on the Copyright Office’s current stance regarding AI-generated content and the scope of copyright protection afforded under U.S. laws.
On September 15, 2022, author, Kristina Kashtanova, applied for and was granted a copyright registration for “Zarya of the Dawn.” In the application, Kashtanova listed herself as the sole author of the work. However, Kashtanova had utilized Midjourney, an AI-based text-to-image generator, to create the images in the book using various “prompts” or text commands. This type of “generative” AI technology is similar to other applications, such as ChatGPT, an AI chatbot, and DALL-E or DALL-E 2, which generate digital images from simple text prompts.
When the Copyright Office discovered that Kashtanova had not disclosed Midjourney’s role in creating the images, the Office concluded that the work should not have been registered in its entirety, as it did not meet the requirement of human authorship under U.S. copyright laws. In her defense, Kashtanova argued that she was in fact the legal author of the images and that Midjourney was merely an “assistive tool” used to create each image “in accord with her artistic vision.”
Copyright Protection for AI-Generated Images
The Copyright Office ultimately concluded that the AI-generated images produced by Midjourney were not original works of authorship subject to copyright protection. Relying on legal precedent, the Office noted that courts have uniformly interpreted the phrase “works of authorship” to signify creations of human authors. Further, Section 313.2 of the Compendium of U.S. Copyright Office Practices (Third Edition), which provides standards for examining and registering copyrighted works, explains that “the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”
Here, the Copyright Office determined that the use of “prompts” to generate an image using Midjourney does not provide users with sufficient control over the generated image to constitute authorship. In other words, while the generated image may be influenced by the prompt text, a user cannot predict the specific output and therefore, is not the “master mind” behind the generated image.
Accordingly, the Copyright Office canceled the original registration and re-issued a limited copyright registration covering the comic book’s text authored by Kashtanova, as well as “the selection, coordination, and arrangement” of the images and text in the book. The new registration explicitly excludes the images generated by Midjourney as “artwork generated by artificial intelligence.”
As this is one of the first decisions issued by the U.S. Copyright Office regarding the scope of copyright protection for works created by AI, artists and content creators alike should take note. In this case, only the text and the selection, coordination, and arrangement of the AI-generated content were eligible for copyright protection, while the artwork itself was not. The Copyright Office specifically left open the possibility that other AI programs may operate differently than Midjourney to generate expressive content, but as it stands now, works that contain AI-generated images or artwork may only be eligible for limited copyright protection.