The US Copyright Office has reversed its decision to grant copyright protection to Kristina Kashtanova for the images in her comic book Zarya of the Dawn, which were created using an artificial intelligence (AI) image generator called Midjourney. In a letter to Kashtanova’s lawyer, the associate Register of Copyrights, Robert Kasunic, explained that the text of the book was authored by Kashtanova, but the images themselves were not the product of human authorship. The registration originally granted for the images was therefore cancelled. The Copyright Office justified its decision by citing previous cases involving the authorship of non-human spiritual beings, as well as the famous case of a selfie taken by a monkey.
Kashtanova had submitted the book to the Copyright Office with both Midjourney and herself listed on the cover. However, Midjourney only appears on the cover and not within the 18 pages of material submitted, leading the Copyright Office to argue that “The fact that the word “Midjourney” appears on the cover page of a Work does not constitute notice to the Office that an AI tool created some or all of the Work.” Kashtanova expressed disappointment that she was not granted copyright to the individual images but celebrated the decision as a victory for artists using AI tools.
The Copyright Office’s decision was based on how Midjourney produces image output by breaking word prompts into tokens that it compares to training data. Although the letter noted that other AI programs could work differently, it concluded that “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 Office also dismissed Kashtanova’s claim that her edits to some of the images made them eligible for copyright, as the changes were deemed either too minor or imperceptible.
Kashtanova’s lawyer, Lindberg, disagreed with the decision and argued that the Copyright Office had a factual misunderstanding of the role that randomness plays in Midjourney’s image generation. Lindberg also suggested that AI-assisted art would need to be treated like photography in the future. Kashtanova is exploring options with her lawyers to further explain to the Copyright Office how individual images produced by Midjourney are direct expressions of her creativity and therefore copyrightable.
