US Copyright Office disqualifies AI-generated art from copyrighted book

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In a revised copyright approval, the US Copyright Office declared that the portions of a comic book written by a human author were deemed eligible for copyright protection, but the images created by a generative AI platform were not. Without copyright protection, could unlicensed re-distribution of such AI-generated content not qualify as piracy?

Author Kris Kashtanova had applied copyright registration for her comic book, Zarya of the Dawn, which was approved and issued in September 2022.  After the approval, the Copyright Office became aware of her postings on social media attributing the images to the Midjourney AI platform.

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Zarya of the Dawn by Kristina Kashtanova and Midjourney generative AI. (Source: US Copyright Office, Registration VAu001480196)

Subsequently, the Copyright Office determined that the copyright application was “incorrect,” and in an October letter, notified the author that it intended to cancel the registration unless she could argue otherwise.

The November response to the Copyright Office by the author’s attorney argued that the registration should stand, on grounds that Midjourney was “merely…an assistive tool,” that “portions of the work are registrable because the text was authored by Ms. Kashtanova and (that) the Work is a copyrightable compilation due to her creative selection, coordination, and arrangement of the text and images.”

On further consideration, the Copyright Office determined that “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. That authorship is protected by copyright. However … the images in the Work that were generated by the Midjourney technology are not the product of human authorship,” and therefore replaced the original copyright certificate with a new one “covering only the expressive material that she created.”

The letter contains a lengthy analysis about the application of copyright law, which may be of interest.

Read the letter: Re: Zarya of the Dawn (Registration # VAu001480196. February 22, 2023. US Copyright Office.  The letter also attaches the October and November correspondences referenced above.

Why it matters

It’s too early to say whether this decision might have an impact on what qualifies as piracy if an AI-generated work is stolen and redistributed illegally.  The cat may already be out of the bag, as multiple major film studios have promoted copyrighted works featuring AI for some years now.

Anyone qualified to offer an opinion about piracy of AI-generated content is invited to contact Piracy Monitor, as such legal opinions are above Piracy Monitor’s pay-grade.

Reporting by Reuters said that the decision is one of the first by a US court or agency on the scope of copyright protection for works created by AI.


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