USCO: AI-Generated Work is not Copyrightable

On February 21th, 2023, the United States Copyright Office (USCO) cancelled the registration certificate previously issued to Ms. Kristina Kashtanova for the “comic book” entitled “Zarya of the Dawn”, considering that the images in the comic book are not the product of human authorship – since they were generated by an AI system – Midjourney – and were therefore not copyrightable.

Based on the Copyright Act and US Supreme Court practice, the USCO came to its decision due to the fact that “the process by which a Midjourney user obtains an ultimate satisfactory image through the tool is not the same as that of a human artist, writer, or photographer”. A work may indeed be copyrighted if it qualifies as an “original work”, the latter being understood as a work “independently created by the author and sufficiently creative

According to the USCO decision, in some cases, when work that contains unprotectable material has been edited, modified, or otherwise revised by a human author, it can be protected, but only if the new work contains a “sufficient amount of original authorship” to itself qualify for copyright protection. This leaves room for manoeuvre as an author is determined, among other things, as “one who completes a work of science or literature”. And the distinction between “complete” and “create” is not clear enough. The main argument tends to be that creativity occurs when authors a) have a direct impact on the result of their creative process and can predict this impact; and b) are able to fully control the tools that they use or the parameters that the tool provides.

Midjourney is a neural network that can recognise typed text and generate images based on this text. Midjourney has been developed by a team hat works in what it sees as an independent research lab that is exploring new mediums of thought and expanding the imaginative powers of the human species. Users operate Midjourney through “prompts,” which are text commands entered via one of Midjourney’s commands. According to its own description, Midjourney does not interpret prompts as specific instructions to produce a particular result. While applying additional prompts to one of these initial images can influence the subsequent images, the process is not controlled by the user because it is not possible to predict what Midjourney will create ahead of time.

Because of the significant gap between what a user may direct Midjourney to create and the visual material Midjourney actually produces, the USCO has stated that Midjourney users do not have enough control over generated images for the AI tool to be deemed sufficiently creative. The fact that Midjourney’s specific output cannot be predicted by users makes Midjourney different from a copyright point of view than other tools used by artists.

Ms. Kashtanova does not claim she created any visual material herself – she spoke in a passive way when describing the final image as “created, developed, refined, and relocated […] Rather than being a tool that Ms. Kashtanova controlled and guided to reach the image that she desired, Midjourney generates images in an unpredictable way. Ms. Kashtanova will be issued with a new certificate bearing the same date, which covers only the copyrightable elements of the comic, such as the accompanying text and arrangement of the written and visual elements.

While debates concerning legal and ethical aspects of the use of generative AI models rage on the other side of the Atlantic, ChatGPT appears ready to upend the staid book industry with over 200 e-books on Amazon’s Kindle store listing ChatGPT as an author or co-author. Questions are therefore being asked, not only about the intellectual property issues surrounding AI-generated work, but also about the risks posed in terms of transparency. In other words, will the public always be informed that an ‘original’ work was produced with the help of AI?

Olena Polianska (Shpak)

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