Reuters says that the US Copyright Office changed its mind about giving Kristina Kashtanova protection for her comic book Zarya of the Dawn last fall. It had pictures that were made by giving text clues to Midjourney, a computer program that makes pictures.
The US Copyright Office has decided that 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,” according to a letter (PDF) sent to her lawyer by Robert Kasunic, the associate Register of Copyrights.
The images, on the other hand, “are not the result of human creativity,” so the registration that was given to them has been taken away.
The Copyright Office says that the decision is fair because people haven’t been able to copyright words or songs written by “non-human spiritual beings” or the Holy Spirit in the past. They also point to the famous case where a monkey took a selfie.
The Copyright Office says that it didn’t find out that the images were made by Midjourney until after the registration was granted. This was because Kashtanova posted the images on social media, which led the office to look for more information.
Both Midjourney and Kashtanova are named on the book’s cover, but the letter says that’s the only place Midjourney is mentioned in the 18 pages of information sent to the Copyright Office, and “The fact that the word “Midjourney” appears on the cover page of a Work does not mean that some or all of the Work was made by an AI tool.”
Kasunic says at the end of the letter that the original certificate was given out based on “incorrect and incomplete information,” which is why it will be taken away.
The artist wrote about the decision on Instagram, calling it a “great day” for people who use Midjourney and similar tools. “When you put your pictures in a book like Zarya, the way they are put together can be copied.
“As long as the story wasn’t made entirely by AI, it can also be copyrighted,” she wrote, adding that she was disappointed that the Copyright Office wouldn’t give her copyright to the individual images.
The Copyright Office’s decision takes into account how Midjourney makes images by breaking up word prompts into tokens that it compares to training data.
Even though other AI programs might work differently, the letter says, “The fact that users can’t predict Midjourney’s exact output makes it different from other tools artists use in terms of copyright.”
The Office also rejects the claim that her changes to some of the images make them eligible for copyright protection, saying that the changes were either “too minor and imperceptible to provide the necessary creativity for copyright protection” or that it couldn’t tell what she did base on the information given.
In their response re: Zarya of the Dawn, the Copyright Office applied the wrong legal standard. Instead, the Office incorrectly focused on the output of the tool rather than the input from the human.https://t.co/SvSG2laVYg
— VanL (@VanL) February 22, 2023
Kashtanova’s lawyer, Lindberg, doesn’t agree. He says, “The Office’s arguments are wrong in a number of ways, some legal and some factual. But they all seem to be based on a fundamental misunderstanding of how randomness works in Midjourney to make images.
Among the mistakes he lists is how Kashtanova’s “modicum” of help was seen. Did her prompt engineering amount to nothing more than a suggestion, or did Midjourney “do exactly what it is programmed to do and pull from an artist-selected place in its huge table of probabilities to drive the creation of an image,” as he claims?
Lindberg says, “Art made with the help of AI will need to be treated like photography. It’s only a question of time.” Kashtanova ended her post by saying, “My lawyers are looking at what we can do to show the Copyright Office that the images made by Midjourney are direct expressions of my creativity and should be protected as such.”
