US Copyright Office rules AI-generated artwork, content not legally protected

TAMPA, Fla. (WFLA) — While anyone can be an artist, writer, or musician and therefore entitled to copyright protections for their work, content made by artificial intelligence is no longer open to those same legal shields.

A decision by the U.S. Copyright Office has ruled against protection of AI copyrights for generated works, be they art, writing or music. The decision came in response to a copyright application for a comic called “Zarya of the Dawn,” which contained original writing, but visual art generated by Midjourney, an AI program.

Put simply, content created by AI programs like Midjourney, ChatGPT, OpenAI, Dall-E, Hotpot, or NightCafe, among others, will not receive protection from the U.S. government for rights, licensing or payment.

Going forward, the U.S. Copyright Office will not allow copyright registrations for generated content. In the letter to Zarya creator Kristina Kashtanova, officials said the decision was focused on whether a work was produced through human authorship.

“As stated in the Compendium of U.S. Copyright Office Practices (3d ed. 2021), the Office will not register works produced by a machine or mere mechanical intervention from a human author. The crucial question is ‘whether the ‘work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine,” wrote the Copyright Office.

Put more bluntly, the Copyright Office said, “In cases where non-human authorship is claimed, appellate courts have found that copyright does not protect the alleged creations.”

Due to Kashtanova’s creative process, the text of her comic itself, wholly generated by her as an author, is protected. It’s merely the visual content that is not.

Even Kashtanova’s claims of direct involvement in the artistic creation, from phrase prompt selection to a variety of image editing steps, did not qualify the art for copyright protection due to its creation by an AI.

The Copyright Office reviewed Midjourney, the AI used by Kashtanova, while analyzing the process. The program’s own documentation states that the AI does not actively understand words, sentences or grammar in the same way as a human, therefore it follows a different process for creation.

According to the documentation by Midjourney, the program instead turns words and phrases into “tokens” and then generates an image at the direction of user. Kashtanova argued in the legal filings that as a result, Midjourney is a tool, similar to a paintbrush or a pencil or a hammer and chisel.

The U.S. Copyright Office did not agree with the assessment, saying “the fact that Midjourney’s specific output cannot be predicted by users makes Midjourney different for copyright purposes than other tools used by artists.”

The lack of human authorship or artistry in this process is void of “original work of authorship fixed in any tangible medium of expression,” the requirement of the Copyright Act for legal protection.

In layman’s terms, an AI just does not create content as a human would, nor with the originality of one, and therefore generated works are not copyright-worthy.

“Based on the record before it, the Office concludes that the images generated by Midjourney contained within the Work are not original works of authorship protected by copyright,” the Office said.

The decision to copyright the text portion of Zarya was hailed by Kashtanova, though the comic author said she would be working to appeal the decision related to copyright of the images in the comic.

“I was disappointed in one aspect of the decision. The Copyright Office didn’t agree to recognize my copyright of the individual images. I think that they didn’t understand some of the technology so it led to a wrong decision,” Kashtanova wrote on Instagram Wednesday. “It is fundamental to understand that the output of a Generative AI model depends directly on the creative input of the artist and is not random. My lawyers are looking at our options to further explain to the Copyright Office how individual images produced by Midjourney are direct expression of my creativity and therefore copyrightable.”

Nexstar’s WFLA reached out to the U.S. Copyright Office for comment, but was referred back to the letter on “Zarya of the Dawn,” with no further comment at this time.