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After initially registering the comic book "Zarya of the Dawn", the US Copyright Office has decided to reverse its decision once it learned that the images in this comic book were generated by the AI Midjourney.

The US Copyright Office explained that the images generated by Midjourney are not "the product of human creation" and therefore are not eligible for copyright protection.

*** 

On September 15, 2022, Ms. Kashtanova obtained the registration of her comic book "Zarya of the Dawn" from the US Copyright Office, giving her the rights to the title, text and drawings.

Some time after the registration was granted, the author decided to reveal on social networks that her comic book had been created with the help of Midjourney, an artificial intelligence that allows images to be created from text descriptions, a fact she had omitted to mention to the Office.

Following this revelation, the Office indicated on October 28, 2022 to Mrs. Kashtanova that it intended to re-examine the file and possibly to go back on the granted registration; it did this by announcing, in a letter dated February 21, 2023, that it limited the protection of the comic strip "Zarya of the Dawn" by excluding the images from the registration. While copyright protects ‘Ms. Kashtanova’s authorship of the overall selection, coordination, and arrangement of the text and visual elements’ that make up the comic book, the Office considered that images were not the product of human creation and are therefore not copyrightable.

Moreover, the Office stated that Midjourney's process ‘is not controlled by the user because it is not possible to predict what Midjourney will create ahead of time [...] Though she claims to have “guided” the structure and content of each image, the process described in the Kashtanova Letter makes clear that it was Midjourney—not Kashtanova—that originated the “traditional elements of authorship” in the images’.

The Office thereby motivated its decision by arguing that people had no control over the creations generated by Midjourney :

The Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author’.

***

This decision is the first to rule on the protection of a creation generated by an AI, an issue that has not yet been studied by the French courts.

Another issue that will soon be decided by the courts is whether the training of AIs with images retrieved from the Internet without the consent of their authors would constitute infringement. Actions are currently under way in the United States and in England against Stability AI, Midjourney and DeviantArt.

These highly anticipated decisions will help define the copyright regime applied to image-generating AIs.

Link to the US Copyright Office decision: https://copyright.gov/docs/zarya-of-the-dawn.pdf

By Audrey PICHOT and Gwendal BARBAUT - 07/04/2023

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