The US Copyright Office has limited a copyright registration for a comic book titled “Zarya of the Dawn” (the “Work”) authored by Kristina Kashtanova containing images generated with Midjourney (an AI image generator).

Kashtanova had applied for and been granted a copyright registration for the Work with the US Copyright Office. After obtaining a copyright registration, the Office sought to cancel the registration on the basis that “the information in [the] application was incorrect or, at a minimum, substantively incomplete” after becoming aware of Kashtanova’s use of Midjourney as part of the creation of the Work.

In a letter to Kashtanova’s counsel, the Office stated that Kashtanova was entitled to copyright registration for “the Work’s text as well as the selection, coordination, and arrangement of the Work’s written and visual elements”. The Office noted, however, that Kashtanova was not entitled to copyright registration for the images in the Work as the images were “not the product of human authorship” and thus could not be protected by copyright.

According to the Compendium of U.S. Copyright Office Practices (3d ed. 2021), the Office currently takes the position that it “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” (at §313.2). The Office noted that the unpredictable output of the Midjourney algorithm meant that Kashtanova lacked sufficient control over the images to be an author, stating that “because Midjourney starts with randomly generated noise that evolves into a final image, there is no guarantee that a particular prompt will generate any particular visual output.”

The US Copyright Office issued a new, more limited registration for the Work expressly excluding “artwork generated by artificial intelligence”.

This decision from the US Copyright Office is one of the first addressing the intersection of copyright and algorithmically generated art, and provides interesting insight on the US Government’s position on such works. It remains to be seen how Canadian copyright law will respond to AI generated art. In the meantime, users of AI platforms should be mindful of the uncertain copyright implications associated with AI.

More information is available here.