Copyright in AI-Generated Artwork: Addendum

This post is an update. Read the original post here

In October 2022 we reported that Kristina Kashtanova, a New York-based artist, received a copyright registration for a graphic novel with AI-generated artwork. We wondered whether this meant that the Copyright Office would register works with AI-generated elements if they also identified a human author or whether the AI-generated aspects might have been overlooked in the review process. It turns out that after becoming aware of statements Ms. Kashtanova made on social media to the effect that the images were created using the AI software Midjourney, the Copyright Office requested additional information, and has now partially canceled the registration. 

In a letter dated February 21, 2023, the Copyright Office states:

We conclude 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. Because the current registration for the Work does not disclaim its Midjourney-generated content, we intend to cancel the original certificate issued to Ms. Kashtanova and issue a new one covering only the expressive material that she created…

Rather than a tool that Ms. Kashtanova controlled and guided to reach her desired image, Midjourney generates images in an unpredictable way. Accordingly, Midjourney users are not the “authors” for copyright purposes of the images the technology generates. As the Supreme Court has explained, the “author” of a copyrighted work is the one “who has actually formed the picture,” the one who acts as the “inventive or master mind.” Burrow-Giles, 111 U.S. at 61. A person who provides text prompts to Midjourney does not “actually form” the generated images and is not the “master mind” behind them.

As always, Lutzker & Lutzker will continue to follow developments in this evolving area.