Copyright Office Issues Opinion Letter on Copyright in AI-Generated Images

Posted March 8, 2023
Photo by Michael Dziedzic on Unsplash

In late February, the Copyright Office issued a letter revoking a copyright registration it had previously granted artist Kristina Kashtanova for a comic that used images generated using Midjourney, a generative AI program that creates images in response to user prompts. While this may seem minor, or simply another data point in the ongoing fight about copyright protection for AI-generated works, the determination is quite significant: it comes at a moment when AI-generated art has captured public attention, and moreover shows the Copyright Office’s thoughts on the important question of whether an artist who relies on a program like Midjourney can obtain copyright protection for an original compilation of AI-generated works. In today’s post, we explain the Copyright Office letter, contextualize it within the growing debate over AI and copyright, and share our thoughts on what all of this might mean for authors who write to be read. 

Copyright and Human Authorship

As technology has advanced to allow the creation of works without the direct involvement of a human, courts have grappled with whether these creations are entitled to copyright protection. In the late 19th century, the Supreme Court established that copyright was intended to protect the products of human labors and creativity, creating the “human authorship” requirement. In an early case on the topic, the Court held that a photograph was copyrightable despite the fact that a camera literally created the image, since photographs were “representatives of original intellectual conceptions of the author.” It cautioned, however, that when it came to creations resulting from processes that were “merely mechanical,” lacking “novelty, invention, or originality” by a human author, such hypothetical works might be beyond the scope of copyright protection.

This principle was tested in the 2010s: in 2011, an Indonesian crested macaque monkey named Naruto seized a photographer’s camera and took hundreds of images of himself. The photographer, David Slater, shared some of these images online, which promptly went viral. Several websites posted these images as well, prompting Slater to assert that he owned the copyright in the images and request their removal. The Wikimedia Foundation, which had uploaded the image to Wikimedia Commons, a repository of public domain and free license content, argued that the image was a part of the public domain due to the lack of a human creator. Several years later, Slater published a book of nature photographs which included Naruto’s selfie. Then, in 2015, the People for the Ethical Treatment of Animals (PETA) filed a lawsuit in the Northern District of California on Naruto’s behalf, asserting that the macaque owned the copyright in the image and requesting damages. The district court judge held that Naruto could not own the copyright in the image due to copyright’s human authorship requirement. However, the judge did indicate that Congress might be free to do away with the human authorship requirement and permit copyright ownership by animals, suggesting that the requirement was not a constitutional one, but indicating that it was beyond the power of the judiciary to decide. The Ninth Circuit Court of Appeals later affirmed the district court’s ruling.

Currently, the Copyright Office is defending a lawsuit in the D.C. district court brought by AI system developer, Dr. Stephen Thaylor, regarding the constitutionality of copyright law’s human authorship requirement. Thaylor argues that the Copyright Act does not forbid treating AI systems as “authors” for the purpose of copyright law, and contends that the human authorship principle is unsupported by contemporary case law. While it seems unlikely that Thaylor will prevail on this argument, the case will at the very least generate new attention about the human authorship requirement and how it fits into creation in the digital age. 

The Creativity Requirement and Zarya of the Dawn

Kashtanova’s assertion of copyright ownership in her comic, Zarya of the Dawn, is in many ways similar to the photographer David Slater’s claim that he owned the copyright in Naruto’s selfie. In each case, the Copyright Office indicated that when a work is not the product of human authorship, a human may not claim copyright in that work (the latest compendium of Copyright Office practices lists “a photograph taken by a monkey” as an example of work that is not entitled to copyright protection since it does not meet the human authorship requirement). 

Kashtanova’s attorney had argued that Midjourney served “merely as an assistive tool,” and that Kashtanova should be considered the work’s author. But the Office likened Midjourney to a “merely mechanical process” lacking “novelty, invention, or originality” by a human creator, quoting the Supreme Court’s warning about the limits of copyright protection in the 19th century case discussed earlier in this post. And it was not only the human authorship requirement that made Zarya of the Dawn beyond the scope of copyright protection, but also copyright’s creativity requirement: for a work to be copyrightable, it must possess at least a “modicum” of creativity, a very low bar that rarely forecloses copyright protection for works of human authorship. 

The Office explained that Midjourney generates images in response to user prompts, “text commands entered in one of Midjourney’s channels.” But these are not “specific instructions” for generating an image, rather input data that Midjourney compares to its training data before generating an image. The Office also argued that these images lack human authorship because the process is “unpredictable” and “not controlled by the user.” In other words, the “creativity” in these images comes not from the human entering prompts, but from the interaction between the prompt and Midjourney’s training data. This makes it different from a tool like a camera over which a user exercises total control—there is little to no unpredictability when we use digital cameras to photograph the world around us, rather all creative choices come from the human using the device. 

The Office also noted that this opinion was not necessarily the final world on AI-generated images, as “other [generative] AI offerings” might operate differently, such that the creativity and human authorship requirements could be met. Kashtanova argued that minor edits she had made to the images were sufficiently creative to give her copyright ownership in the work as a whole. While the Office disagreed in this specific case (the before and after images demonstrating the editing were nearly identical), it did leave this possibility intact for future cases. Moreover, the Office granted Kashtanova ownership in the comic’s text, which she alone had written, as well as copyright ownership in the compilation of Midjourney-generated images. Compilations of uncopyrightable subject matter can sometimes be protected by copyright, because both the human authorship and creativity requirements are met when a human selects and arranges the material. The copyright owner does not own a copyright in the material itself, but in the original compilation they have created.

What Does this Mean for Authors?

The Copyright Office’s denial of registration in the Midjourney-generated images has important implications for the public domain and authors’ abilities to use new forms of technology as assistive tools in the creation of their works. But the Office’s action also leaves some open questions about the copyright status of images generated by Midjourney and similar systems. One possibility is—as was asserted by Wikimedia in the case of Naruto’s selfie—these images are a part of the public domain. Were that to be the case, it could be a boon for artists and creators. Recall that once a work is in the public domain, it becomes free for all to use without fear of copyright infringement. The case of the monkey selfie is further instructive here, as the owner of the camera in that case did not prevail on claiming his own copyright in Naruto’s selfie. By the same token, it is unlikely that the creators of Midjourney could claim a copyright in images like those used by Kashtova, despite their role in creating and making available the “assistive tool.” 

If AI systems could be used to generate infinite public domain content—whether through text-based systems like ChatGPT or image-generating systems like Midjourney—this would greatly expand public domain content. The public domain can be a boon for creators, as they are free to do anything they wish with this material. On the other hand, some have expressed fear that, should all AI-produced works be considered a part of the public domain, these public domain works could compete with works produced by human authors. It is also important to remember the practical economic realities of systems like Midjourney. Whether or not the Copyright Office and other policymakers determine that AI-generated content is a part of the public domain, the creators of those systems could employ other means to assert ownership or forbid onward uses of the content created by these systems. Contractual override, the employment of so-called “digital locks” like DRM, or other legal and technical mechanisms could conceivably limit authors’ ability to use AI-generated works the way they might use more traditional public domain materials.