AI-created images are not protected under copyright law, according to the US Copyright Office

The United States Copyright Office has ruled that illustrations in a new comic that were created with the AI ​​Midjourney program are not protected under copyright law, according to a letter issued by the Copyright Office. News of the decision, first reported by Reuters, comes as Internet users get used to a new world of content creation that increasingly relies on artificial intelligence tools like ChatGPT and Midjourney.

The comic strip in question, Zarya of Dawn, was written by Kristina Kashtanova, and the Copyright Office notes that the text of the publication is still copyrighted. But the designs, all created by Midjourney, receive none of the same intellectual property protections.

Kashtanova originally filed for copyright protection in September 2022, but did not disclose that the illustrations were made by an AI imager.

“We concluded that Ms. Kashtanova is the author of the text of the Work, as well as the selection, coordination and arrangement of the written and visual elements of the Work. This authorship is protected by copyright. However, as discussed below, the images in the Work that were generated by Midjourney technology are not the product of human authorship,” reads the letter, published online by Reuters.

“As the Work’s current registration does not deny its mid-journey generated content, we intend to cancel the original certificate issued to Ms. Kashtanova and issue a new one covering only the expressive material she created,” the letter continues.

The letter goes on to explain that only images created by humans can obtain copyright protection, citing instances where animals have taken pictures, which are not covered by US copyright law.

The letter also notes that Kashtanova tried to argue that her textual prompts in Midjourney were a type of creation or authorship, a claim the Copyright Office rejected.

“A person providing text prompts to Midjourney does not ‘actually form’ the generated images and is not the ‘mastermind’ behind them. (…) Information in the prompt may ‘influence’ the generated image, but the prompt text does not dictate a specific result,” explained the Copyright Office.

AI imaging tools like Midjourney work by training on millions of images available on the web, creating images that closely approximate things that already exist somewhere in some form. But there are a host of new intellectual property issues that arise when these tools, which are relatively new, are released into the world.

For example, there is currently an Instagram account called AI Muppet Generator that posts AI-created images that look like they were produced by Jim Henson’s studio. But they weren’t. They are the “new” Muppets that were created with Midjourney and have nothing to do with Disney, who bought the Muppets brand in 2004.

And while they’re cute and seemingly “original” in some way, it’s hard to believe that Disney will let them get away with these creations for very long.

This latest ruling by the Copyright Office could also influence the cases currently being considered in the courts about how AI images are created on a technical level. Getty Images, for example, is suing Stability AI, which created the popular Stable Diffusion AI art generator. As Getty explained in the court filings, the Getty Images watermark sometimes even appears on AI-generated images, apparently proof positive that Stability AI has been using copyrighted images to train its AI models.

It’s a brave new world of web content creation, thanks to AI. And companies are still learning how to put up guardrails, especially after the Bing Chatbot tried to break up a reporter’s marriage and expressed a desire to steal nuclear secrets. But there will be plenty of lawsuits in the coming months and years as creators find out who owns the intellectual property created by a machine. As far as the US Copyright Office is concerned, nobody does.

“The Office does not dispute Ms. Kashtanova that she has spent significant time and effort working with Midjourney. But this effort does not make her the ‘author’ of the Midjourney images under copyright law,” the Copyright Office wrote.

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