The United States Copyright Office (USCO) recently reaffirmed copyright #VAu001480196 for an AI-generated comic book that draws a clear line. In the statement, it was confirmed that the text and arrangement of the images qualified for copyright protections, but the individual images do not.
This decision comes in the wake of Stephen Thaler's lawsuit against the USCO in one of many attempts around the world by Thaler to obtain a copyright in the name of his AI. The USCO stance is that AI cannot own a copyright and AI-generated work does not qualify to be copyrighted, something it reaffirmed with the comic.
First Copyrighted AI Comic
On September 15, 2022, Kristina Kashtanova filed the first known copyright on AI generated work for her MidJourney-illustrated comic book Zarya of the Dawn.
Soon after, the Copyright Office challenged their filing due to Kashtanova giving interviews to the press about it. Last month, their copyright was erroneously canceled by the USCO, which stated that was a system error.
Here is the exact email sent to Kashtanova by the copyright office in 2022 that threatened to cancel the copyright. After posting in Facebook AI groups about her fight, MidJourney reached out and offered her the attorney. His response to the below email can be found on his Twitter account.
Kashtanova’s legal strategy was to respond and await ruling on this application. If it is rejected, they would have refiled. However, now that it is in place, Kashtanova can enforce the copyright while legally selling her comic.
Correspondence ID: 1-5GB561K
RE: Zarya Of The Dawn
Dear Ms. Kashtanova:
We are writing you regarding the copyright registration that you obtained for the work titledZarya Of The Dawn (the “Work”) on September 15, 2022 (Registration # VAu001480196). The application you submitted for the Work identified yourself as the sole author and did not disclaim any portions of the Work. The only information available to the Registration Specialist during examination was what you provided in the application and the deposit copy of the Work. Based on this information, the U.S. Copyright Office (the “Office”) registered the Work and issued a certification of registration that reflected you as the sole author.
Soon after the Work was registered, the Office was contacted by a reporter in response to public statements you made regarding the creation of the Work. You stated that an artificial intelligence tool was used to create some or all of the content in the Work. This information was not provided to the Office in your application. Based on these comments, we have preliminarily concluded that the information in your application was incorrect or, at a minimum, substantively incomplete. Pursuant to 37 C.F.R. § 201.7(c)(4), by this letter, we are initiating cancellation of U.S. Copyright Office Registration VAu001480196 because by your own admission, you are not the sole author of the entire work and, at a minimum, the claim should have been limited to exclude non-human authorship. You have thirty days to respond in writing to show cause why this registration should not be cancelled.
Copyright’s Human Authorship Requirement
The U.S. Copyright Office will register an original work of authorship only if the work was created by a human being. U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 306 (3d ed. 2021). The copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the mind.” Trade-Mark Cases, 100 U.S. 82, 94 (1879). Because copyright law is limited to “original intellectual conceptions of the author,” the Office will refuse to register a claim if it determines that a human being did not create the work. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884). See also 17 U.S.C. § 102(a); Compendium (Third) § 306.
Consistent with the law, the Office will not knowingly register works produced by a machine or mere mechanical process that operates randomly or automatically without sufficient creative input or intervention from a human author. See 17 U.S.C. § 102(b) (The Copyright Act prohibits copyright protection for “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”); Compendium (Third) § 313.2. The Office recently discussed its requirement of human authorship in a written decision affirming the denial of an application for a 2D visual work claimed to be solely created by an artificial intelligence machine. See Copyright Review Board Letter to Ryan Abbott, dated February 14, 2022 (available at https://www.copyright.gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf).
The Application for Registration of the Work
Upon submission of your application, you signed a certification confirming that all of the statements in the application are true to the best of your knowledge.[1] In the space for “author,” you identified yourself. Because the “limitation of claim” and “Note to C.O.” spaces on the application were left blank and there was no cover letter explaining how the work was created, the Registration Specialist examining the application had no reason to conclude that you were not the sole author of the entire work as stated on your application). Nothing in the deposit copy of the Work contradicted this conclusion. The material deposited for registration consists of eighteen (18) individual files containing .jpg images. Each of the images contain text and graphical material. While the word “Midjourney” appears on the cover page of the work, there is no indication of the intent or meaning of the word on the cover. Based on the information submitted, the Registration Specialist appropriately approved the registration without correspondence or annotation per Copyright Office practices. The effective date of this registration is September 15, 2022.
After the registration was approved, the Office became aware of public statements and online articles in which you discuss the creation of Zarya Of The Dawn.[2] After reviewing these statements, the Office now understands that “Midjourney” is an artificial intelligence tool you used to create some or all of the material contained in the work. In those public statements, you claim that your reliance on this artificial intelligence tool was clearly disclosed in your application. However, the word “Midjourney” appears only once within eighteen (18) individual files of material submitted to the Office for registration. This cryptic inclusion of the name of the tool was by no means an obvious or clear indication that you may not have created some or all of the material included in this work—contrary to the information you provided in your application. Had you included such a clear statement in an appropriate space on the application, the Registration Specialist would have corresponded with you to determine if this work was created by a human author, and if so, to clarify the appropriate scope of your claim. The fact that the word “Midjourney” appears on the cover page of a Work does not constitute notice to the Office that an AI tool created some or all of the Work.
Cancellation
The Copyright Office may cancel a completed registration where it is clear that no registration should have been made because the work does not constitute copyrightable subject matter or fails to satisfy the other legal and formal requirements for obtaining a registration. 37 C.F.R. § 201.7(b)(1). The Copyright Office will cancel a completed registration where it is clear that no registration should have been made because “information essential to registration has been omitted entirely from the application or is questionable.” 37 C.F.R. § 201.7(c)(4).
In such instances, the Copyright Office will notify the copyright claimant named on the original registration in writing of the proposed cancellation, and the claimant will be given thirty (30) days from the date of this communication, to show cause in writing why the registration should not be cancelled. Id. If the claimant fails to respond within the thirty (30) day period, or if after considering the claimant’s response, the Copyright Office determines that the registration was made in error and not in accordance with the law, the registration will be cancelled. Id.
Conclusion
After carefully reviewing your numerous public statements describing the facts surrounding the creation of the Work registered under VAu001480196, the Office finds that the Work should not have been registered because it cannot be determined that it contains enough original human authorship to sustain a claim to copyright.
Should you choose to respond as provided in 37 C.F.R. § 201.7(c)(4), your response must be received no later than thirty (30) days from the date of this message. If you choose to respond, you should explain in detail exactly how the Work was created, including your reliance on pre-existing photographs, artificial intelligence tools, or any other material incorporated into the work, which you did not author.
Please email your response as an attachment toregistrationprogramoffice@copyright.gov.
Sincerely, Robert J. Kasunic
Associate Register of Copyrights and
Director of Registration Policy and Practice
U.S. Copyright Office, Library of Congress
After receiving the email, Kashtanova posted on Facebook, and a MidJourney representative reached out to offer a $10,000 retainer on an attorney to represent her in the matter.
Kashtanova’s MidJourney attorney called the USCO to clarify this is a clerical error on the part of the USCO and it was still tentatively in place.
These rules were hotly disputed by AI artist Brian Penny, who claims Kashtanova stole his work and Adobe Stock shadow banned him and limited his earning potential by excluding him from the post. According to the USCO ruling, neither artists' work on Adobe Stock is protectable by the USCO. However, it's still protected by the rules of the platforms they're on, making Adobe's stance in direct opposition to the USCO.
What this will mean for the future of AI-generated images and text remains to be seen, but as of right now, it's risky to use the raw outputs from either of them.
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