​The use of artificial intelligence (AI) to generate creative works raises interesting legal challenges to the protection of intellectual property. The plain language of the Copyright Act presents obstacles to artists who may use generative AI as part of their creative process. The U.S. Copyright Office (USCO) recently reissued the registration certificate to Kristina Kashtanova for the graphic novel, Zarya of the Dawn, and determined that the images in the novel were not copyrightable because the AI application – not Ms. Kashtanova – was the author.

What You Need to Know:

• AI is computer technology that can simulate human intelligence.
• In September 2022, the USCO issued a registration for a graphic novel that was created with the assistance of AI, and then shortly thereafter, changed its position and notified the author that it might cancel the registration.
• In February 2023, the USCO reissued the registration certificate for Zarya of the Dawn to only cover the work’s text and selection, coordination, and arrangement of written and visual elements, but not the images because they were generated by Midjourney.
• The reissuance was based, at least in part, on information the USCO found on social media to investigate the circumstances leading to the graphic novel’s creation.

AI is generally described as the use of computer technology to simulate human intelligence. AI can make decisions based on data analysis and pattern recognition, learn from past experiences to optimize processes, and generate images from speech or text. This alert provides additional guidance on the USCO’s stance on using AI to create works of art and the implications for the protection of creative works generated, at least in part, by AI.

As I explained in a prior alert, in September 2022, the USCO issued a copyright registration for Zarya of the Dawn, a graphic novel where the author used the generative AI application, Midjourney, to create the images, but then notified the author about a month later that it might cancel the registration if she could not demonstrate substantial human involvement in the creation of the graphic novel.

On February 21, 2023, the USCO clarified its position on works created by AI and reissued a registration certificate that excluded the graphic material created by Midjourney from copyright protection. In so doing, the USCO reiterated that “works of authorship” are limited to creations by individuals and not machines. Stated differently, the USCO’s position is that there must be “some element of human creativity” for a work to be copyrightable. See Urantia Foundation v. Kristen Maaherra, 114 F.3d 955, 957-59 (9th Cir. 1997); Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991) (“originality requires independent creation plus a modicum of creativity”). What that level of human involvement is, however, and how to sufficiently document it, are issues for authors and artists seeking to protect their works to consider.  

The USCO found that Zarya of the Dawn’s text is protected by copyright because Ms. Kashtanova advised the USCO that she wrote the graphic novel without the assistance of AI. Similarly, the USCO determined that the selection and arrangement of the images and text in the graphic novel were protectible as a compilation, based on Ms. Kashtanova’s representation that she alone was responsible for the selection and arrangement of the images in her work.

With regard to the individual images, however, the USCO concluded that they are not protectible original works. Importantly, the USCO determined that Midjourney – and not Ms. Kashtanova – was the author of the images. The USCO relied on the process by which Midjourney generates images to find that Ms. Kashtanova was not the originator of the content. Specifically, that Midjourney created the final images found in Zarya of the Dawn in an unpredictable way, a process of trial and error based on hundreds or thousands of prompts provided by Ms. Kashtanova to Midjourney until the program generated an image that she was satisfied with. Put simply, the USCO decided that Ms. Kashtanova was not the author of the images because she was unable to control and guide Midjourney to reach the final images that she desired.  

Also, it is worth noting that the USCO relied on statements made on social media that were attributed to Ms. Kashtanova, about her use of Midjourney to create Zarya of the Dawn. Ms. Kashtanova did not disclose in her registration application that she used AI to create any part of the graphic novel, nor did she disclaim any portion of the work. While the USCO ordinarily “does not conduct investigations or make findings of fact to confirm” statements made in an application, the USCO “may take administrative notice of facts or matters that are known by the Office or the general public” to evaluate an application for accuracy or completeness. See Compendium of U.S. Copyright Office Practices, Third Edition, § 602.4(C). Thus, the USCO effectively put authors and artists on notice that it will review information on the internet to assess the level of human involvement in a work’s creation.        

Authors and artists should pay careful attention to this recent action by the USCO and how the Office views the use of generative AI to create works, such as art, music, movies, and software. Individuals who use AI for creative purposes should be prepared to document to the USCO their own involvement in the process, as well as how they used AI to assist in that regard, and expect the USCO to rely on publicly available information, such as social media posts, to assess the protectability of works made with the involvement of AI applications.