In less than one month the US Copyright Office has first refused registration for Kristina Kashtanova’s images generated with Midjourney and then issued a statement of policy to clarify its practices concerning works that contain material generated by the use of artificial intelligence.
The outcome leaves some bewilderment.
In Kashtanova’s case (here), the office concluded that “the images in the Work that were generated by the Midjourney technology are not the product of human authorship”, finally comparing them to a search engine result, or a commissioned work made for hire (but without the legal requirements for it to qualify as one).
Notably, the USCO justified such a statement on the assumption that “The process by which a Midjourney user obtains an ultimate satisfactory image through the tool is not the same as that of a human artist, writer, or photographer. As noted above, the initial prompt by a user generates four different images based on Midjourney’s training data. While additional prompts applied to one of these initial images can influence the subsequent images, the process is not controlled by the user because it is not possible to predict what Midjourney will create ahead of time”.
In the Office’s view, therefore, Midjourney users cannot be the “authors” for copyright purposes of the images the technology generates, since the information in the prompt may only “influence” generated images, but there is too much distance between what a user may direct Midjourney to create and the visual material Midjourney produces.
Hence, it does not matter if the images are the visual representation of “creative, human-authored prompts”, nor that “users like Ms. Kashtanova may take “over a year from conception to creation” of images matching what the user had in mind”. Users’ effort in “prompting”, selecting and studying “hundreds of intermediate images” is not “rewarded” but, to the contrary, it confirms that “Midjourney users lack sufficient control over generated images to be treated as the “mastermind” behind them”. A circumstance that, also, “makes Midjourney different for copyright purposes than other tools used by artists”, such as photo editing or other assistive tools.
As anticipated, the Copyright Office almost immediately came back on the topic, by issuing a statement regarding “Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence” (here).
There the Office explained that evaluation of AI-generated works of art “is necessarily a case-by-case inquiry”, which begins by asking “whether the ‘work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine”. In the case of works containing AI-generated material, the Office will then consider whether the AI contributions are the result of “mechanical reproduction” or instead of an author’s “own original mental conception, to which [the author] gave visible form”.
The answer, unsurprisingly, will then depend on the circumstances, “particularly how the AI tool operates and how it was used to create the final work”. If we look at Kashtanova’s case, however, it is quite clear that, at least for the moment, the “circumstances” would hardly favor the AI tools users.
Cover image created with Midjourney, not by MVLP 😉
