PatentNext Takeaway: The U.S. Copyright Office originally granted copyright registration to a comic book titled “Zarya of the Dawn.” However, upon learning that the comic book included images created by an AI tool, the Office canceled the original registration but allowed a new registration more narrowly focused on the contributions of the human author, namely the text of the comic book and the selection of arrangements of the AI-generated images. 

Over of the Work: A Comic Book titled “Zarya of the Dawn” 

According to the Office’s letter, Kristina Kashtanova, as the intended author, had developed a comic book titled Zarya of the Dawn (the “Work”). On September 15, 2022, she submitted the Work to the U.S. copyright office for registration. The Work consisted of eighteen pages, including images of a young woman and mixed text and visual material. A reproduction of the cover page and the second page are provided below: 

Ms. Kashtanova relied on an AI image-generating tool (Midjourney) to create the images. In addition, for at least some images, she used additional imaging editing software (Adobe Photoshop) to personally edit or enhance the original AI-generated images as produced by Midjourney. For example, Ms. Kashtanova edited an image on page 12 of the Work depicting an elderly woman with her eyes closed:

For the above image, Ms. Kashtanova described that she used both “the Midjourney service and Photoshop together,” where she first generated the images with Midjourney and then edited the images in Photoshop to “show[] aging of the face, smoothing of gradients[,] and modifications of lines and shapes.” 

In addition, Ms. Kashtanova created some aspects of the Work without the use of any AI tool. In particular, Ms. Kashtanova had written all text in the comic book entirely without the help of any other source or tool, including any generative AI program.

Moreover, Ms. Kashtanova selected, refined, cropped, positioned, framed, and arranged the images in the Work to create the story told within its pages. 

U.S. Copyright Office’s original review and subsequent findings

As described above, Ms. Kashtanova had previously applied for and obtained an original copyright registration for the Work, Registration # VAu001480196. In her application, Ms. Kashtanova listed herself as the author of the Work and stated that she had created a “[c]omic book.” Her application did not disclose that she used artificial intelligence to create any part of the Work, nor did she disclaim any portion of the Work.

Shortly after registering the Work, the Office became aware of Ms. Kashtanova’s statements on social media, where she stated that she had created the comic book using Midjourney. Because the application had not disclosed the use of artificial intelligence, the Office determined that the application was incorrect or at a minimum, substantively incomplete.  

As noted in its letter of February 21, 2023, the Office found that while Ms. Kashtanova’s selection and arrangement of the AI-generated images were copyrightable (given that Ms. Kashtanova’s selection and arrangement amounted to a “modicum of creativity” and that she was, of course, human – both as required by U.S. copyright law), the AI-generated images themselves could not be copyrighted as it was produced by a non-human. The Copyright Office’s decision was based, at least in part, on a Supreme Court case about camera technology from 1884 involving Oscar Wilde. For those interested in this fascinating case, please see PatentNext’s article  The Curious Case of Burrow-Giles Lithographic (an 1884 U.S. Supreme Court decision involving “new” camera technology), and how it could help Shape Today’s Thinking on Artificial Intelligence (AI) Inventorship.

Further, and not surprisingly, the Office found that Ms. Kashtanova’s written text (e.g., the comic character’s dialogue and comic book narration, etc.) was copyrightable.

Based on these findings, the Office canceled Ms. Kashtanova’s original registration and replaced it with a new registration covering the original authorship that Ms. Kashtanova contributed to, namely: (1) the “text” and (2) the “selection, coordination, and arrangement of text created by the author and artwork generated by artificial intelligence.” 

However, the new registration explicitly excluded the images/artwork generated by artificial intelligence (Midjourney). 

Lessons Learned: Current state of U.S. Copyright law and an Applicant’s Duty to disclose AI-generated works or portions thereof to the Copyright Office

Currently, under current laws, including those of the U.S., an artificial intelligence model (such as Midjourney) cannot be considered an “author” for purposes of copyright protection. For example, the U.S. Copyright Office has published “Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence,” which provides that “[i]n the Office’s view, it is well-established that copyright can protect only material that is the product of human creativity. Most fundamentally, the term ‘author,’ which is used in both the Constitution and the Copyright Act, excludes non-humans.” 88 Fed. Reg. 51 at 16191.

It should be noted, however, that the Copyright Office, in its publication, noted that “[i]ndividuals who use AI technology in creating a work may claim copyright protection for their own contributions to that work.” Id. Such was the case with respect to Ms. Kashtanova’s contributions, e.g., the text and her selection and arrangement of the AI-generated images.

Further, it should be noted that the Copyright’s guidance on AI-generated works describes a “duty” to inform the Copyright Office when a work generated by a generative AI (e.g., Midjourney) is sought to be copyrighted. That is, the Copyright’s guidance states that: “applicants have a duty to disclose the inclusion of AI-generated content in a work submitted for registration and to provide a brief explanation of the human author’s contributions to the work.” 

Thus, those wishing to follow in the footsteps of Ms. Kashtanova should take heed and disclose any aspect of a work that was contributed by an AI. 

In any event, the U.S. Copyright’s decision regarding Zarya of the Dawn provides guidance for the position on whether, and what portions of, an AI-generated work is copyrightable, at least in the U.S. That is, of course, assuming Ms. Kashtanova decides against an appeal.

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PatentNext is moderated by Ryan N. Phelan, a registered U.S. Patent Attorney and Software and Computer Engineer. Ryan previously worked in the IT industry as a consultant at Accenture, where he regularly consulted Fortune 500 companies in software and computing technologies. Ryan is…

PatentNext is moderated by Ryan N. Phelan, a registered U.S. Patent Attorney and Software and Computer Engineer. Ryan previously worked in the IT industry as a consultant at Accenture, where he regularly consulted Fortune 500 companies in software and computing technologies. Ryan is featured in the IAM Strategy 300 & 300 Global Leaders guides, and was selected for inclusion in The Best Lawyers in America© list in the practice area of Patent Law. Ryan is also an adjunct professor at Northwestern University’s Pritzker School of Law where he teaches coursework on Patenting Software Inventions. Learn more about Ryan.