Last year, Kristina Kashtanova submitted her comic book Zarya of the Dawn to the US Copyright Office and was granted copyright protection. However, in a letter Kashtanova received earlier this month, the protection was partially revoked. "[T]he images in the Work that were generated by the Midjourney technology are not the product of human authorship," the Office stated in the letter. "Because the current registration for the Work does not disclaim its Midjourney-generated content, we intend to cancel the original certificate issued to Ms. Kashtanova and issue a new one covering only the expressive material that she created."

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• "There are a number of errors with the Office’s arguments, some legal and some factual," Van Lindberg, Kashtanova's attorney wrote in an extensive blog post. "However, they all seem to stem from a core factual misunderstanding of the role that randomness plays in Midjourney’s image generation.”

• "It is fundamental to understand that the output of a Generative AI model depends directly on the creative input of the artist and is not random," Kashtanova wrote herself in an Instagram post.

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Legal Precedence

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As Reason.com notes, a 1997 decision by the 9th Circuit Court of Appeals in the case of Urantia Foundation v. Maaherra ruled that "some element of human creativity must have occurred in order for" something to be copyrightable. Yet, according to Ars Technica, Michael Noll of Bell Labs was able to copyright an AI-generated image of his in 1965 "on the premise that the machine created the image using an algorithm that Noll wrote." To bring it to the modern-day, however, Ars Technica adds that Getty Images does not allow AI-generated images on its site "over unresolved issues about copyright and ethics issues."

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The Verdict

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Week after week, I write about AI and copyright for this newsletter and I’m beginning to understand that technology has rapidly outpaced our laws. So will AI-generated art be viewed as an artist’s tool (like a paintbrush or camera) in the years to come, or a whole separate category of IP? This is the central question we face today.

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