AI Comic Art Dispute Leaves Copyright Protections Open-Ended

The US Copyright Office’s grant of a limited copyright registration for an artificial intelligence-assisted graphic novel cracked open the door for more attempts to protect works that blur the line between human and machine creativity.

Kris Kashtanova, artist and creator of “Zarya of the Dawn,” earlier this week won registration for the comic’s text and the work as a whole, but not the individual images generated by a Midjourney text-to-image AI program.

Midjourney users aren’t “authors” for copyright purposes because the technology generates images in an unpredictable way, the agency said in a Feb. 21 letter to Kashtanova. However, it said it’s possible other AI programs that generate expressive material may operate differently than Midjourney.

There will be more test cases given the relatively narrow basis for the office’s decision, according to Barbara Barath, an attorney at Debevoise & Plimpton LLP.

“This is not the end of the road,” Barath said. “There are definitely still questions as to the scope of protection available and exactly where the line is going to be drawn.”

The office’s determination comes at a time where AI’s explosive growth has led government agencies and courts to attempt to balance intellectual property rights with new technology, particularly as lawsuits push to enforce IP protections for works created solely by or with the assistance of AI programs.

An agency spokesperson said the office is developing guidance for registering works created in part with AI-generated material. It will also host public events on the technology and later this year will seek public comment on copyrights and AI, they said, declining to comment further.

Kashtanova’s attorney Max Sills called the Copyright Office’s action “huge” and said it “completely changes the game” for artists that take time and effort to curate and create a product such as a book or movie using AI tools.

“Where we have a lot of positive room is to show them how much human creativity there is in things that people use AI for,” said Sills, general counsel of Midjourney.

Others weren’t as pleased with the decision.

“This case signals that even where someone has played a significant direct role in the production of a work by directing creative elements and curating AI output and iterating with the AI, the Copyright Office is now taking a broader position that these sorts of works are generally unprotectable,” said Ryan Abbott, an attorney at Brown Neri Smith & Khan LLP who is representing computer scientist Stephen Thaler in his case to register an AI-created work.

AI-Generated Images

The Copyright Office has made it clear that it will not register works created solely by AI, and defended that stance in court recently.

Despite Kashtanova’s involvement in writing the prompts that generated the Midjourney images and editing some of the art, the Copyright Office determined the images were “not the product of human authorship.” The office said it was unclear what Kashtanova edited, but if they could prove the changes were substantive, those edits wouldn’t be excluded from the new registration.

“A big problem is that the office seems to think that the outputs of Midjourney are just random and anything that the artist puts in it is just a suggestion—maybe something will happen with it, maybe it won’t, it’s like words in the wind,” said attorney Van Lindberg of Taylor English Duma LLP, who also represents Kashtanova. “The problem is that is just incorrect.”

Page 1 of the graphic novel “Zarya of the Dawn.”

Source: Taylor English Duma LLP

“Kris directed the lighting, the content, the setting, the scenery, the feel. It shouldn’t matter that those things were computer generated and not captured by a camera,” Lindberg added.

Although the Copyright Office’s decision left room to interpret things differently for other AI generators in the future, some attorneys said artists looking to register AI-assisted works now may be disappointed.

Brown Neri Smith & Khan’s Abbott said that though the office appears to have left the door open to works created using other generators, “it would be difficult for them to distinguish between what is being done by Midjourney here and what is being done by other commercially available generative AI systems online.”

Behind the Times?

Kashtanova’s attorney Sills said the Copyright Office’s decision is a clear indication of a struggle to grapple with new technology.

“Any new technology is going to confuse people,” he said, adding that the office got the decision 80% right but it is important to get this issue 100% right “because these are the tools that modern artists are going to use.”

Vivek Jayaram, attorney and founder of Jayaram Law, said the decision is taking a very “strict textualist view of copyright law.”

“There’s a lot of different kinds of ways that artists make work,” Jayaram said. “If one of those ways is by creating a digital artwork that in part uses these tools, I really cannot see how the Copyright Office can somehow say that requires no human effort or input in such an extreme way that it strips them of any right to obtain copyright protection.”

“It seems immediately outdated.” he said.

Jayaram said he believes the current standards put forth by the decision will change over time.

“Its not the first time that the Copyright Office has taken a view that’s maybe in the early days of a new technology that ultimately ends up being the minority view,” he said.

Kashtanova’s attorneys plan to respond to the office’s decision, but Abbott said any attempt to contest the decision will be a slow process. It will require them to twice have been subject to requests for reconsideration before being able to challenge it judicially, he said.