The US Copyright Office has determined that illustrations inserted in a comic created with the Midjourney’s Artificial Intelligence cannot be protected by copyright law. The Bureau decided to revoke the copyright protection granted to Kristina Kashtanova last fall for her comic strip “Zarya of the Dawn” because it contained images created by Midjourney, a research laboratory that creates images from text prompts.
In particular, the Copyright Office has decided that, although Kashtanova is the author of the text of the work as well as the selection and organization of the text and its written and visual elements thereof, the images themselves have no human authorship and, therefore, the originally granted registration has been cancelled. To justify the decision, the Copyright Office cited similar precedents, for which copyright protection was not granted for words or songs that mentioned “non-human spirit beings” or the Holy Spirit as the author, in addition to the famous case of the selfie taken from a monkey.
The Copyright Office says it only became aware of the images produced by Midjourney after the registration was granted, based on Kashtanova’s social media posts, and has carried out further research into the case as a result. Accordingly, the Office concluded that protection had been granted on the basis of “inaccurate and incomplete information” and that a protection certificate will be issued only for expressive material created by Kashtanova.
It seems that Midjourney is only mentioned on the cover of the book in question and, if so, the presence of the word “Midjourney” seems to suggest that an artificial intelligence created part or all of the work.
The Copyright Office’s decision addresses a number of intellectual property issues that arise when artificial intelligence tools produce output, given also that the specific output of Midjourney cannot be predicted by users, thus making Midjourney different for copyright purposes than the tools usually used by artists. The fact that, in the present case, modifications have been made to the images does not allow the protection of copyright, since such modifications would not have been such as to impart a creativity necessary for the relative protection.
According to Kashtanova’s lawyers, the Office misunderstood not only the role that chance plays in generating Midjourney’s image, but also Kashtanova’s personal contribution, which was deemed to have little influence. The hope is to consider art assisted by artificial intelligence in the same way as photography.