Last year, Kris Kashtanova got USA copyright for her comic book Zarya of the Dawn, created using MidJourney. But maybe not for long?
Last year, the US Copyright Office, granted copyright protection to creator Kris Kashtanova for her comic book Zarya of the Dawn. The comic was created via a series of prompts to the artificial intelligence AI engine Midjourney. It was the first time the US copyright office had approved an application for an AI work, and it threatened to have serious consequences for the creative industry.
And someone there seems to have had big thoughts about that. Bleeding Cool understands the Copyright Office is planning on revoking that protection, considering the original approval an oversight (despite the cover stating that the art was created with AI) and stating that copyrightable works require human authorship. A case often cited if the photograph a monkey took of itself using a camera that a photographer had set up, the copyright of which was denied the photographer. The copyright previously granted for Zarya of the Dawn remains in effect, however, while the procedure is carried out, and Kashtanova has an opportunity to object.
On Facebook, Kris Kashtanova stated that “I lost my copyright. The registration of my A.I. assisted comic book Zarya of the Dawn (that was believed to be the first A.I. assisted copyright registration in the US) was canceled. I haven’t heard from the Copyright Office yet but was informed by a friend who is a law professor who was checking records. I’ll keep you updated when I hear more details”…. following up saying “I just got an update from my lawyers who called the Copyright Office. It was a malfunction in their system and the copyright wasn’t revoked yet. It’s still in force and they promised to make an official statement soon.”
Kris’ lawyer, Van Lindberg of Taylor English Duma in San Antonio, Texas, paid by Midjourney, submitted a letter to testify regarding human involvement in the creation of AI art, arguing that it could be copyrightable.
“As stated in the Compendium of U.S. Copyright Office Practices (3d ed. 2021), the Office will not register works produced by a machine or mere mechanical intervention from a human author. The crucial question is “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. As described below, Kashtanova engaged in a creative, iterative process which she describes as “working with the computer to get closer and closer to what I wanted to express.” This process included multiple rounds of composition, selection, arrangement, cropping, and editing for each image in the Work. Her efforts make her the author of the Work, including authorship of each image in the Work. The computer programs she usedincluding the Midjourney image creation service, were but “an assisting instrument” to Kashtanova.”
The letter states that press accounts oversimplify Kashtanova’s creative process and that “there are no tools, of any sort, that can take the original conception of Kashtanova and, un-guided by humans, create the type of immersive and integrated story that exists in the Work. Each picture communicates an essential element of the story, supporting and expanding upon the text written by Kashtanova.”
“This image, “Zarya Holding a Postcard,” is one of the most important images in the Work. It is contained within the first pages of the story and is used to establish Zarya’s character and the setting for the story. This was the final image resulting from Kashtanova’s creative process before it was cropped and placed in context in the Work.”
“The first version of “Zarya Holding a Postcard”–shown to the right–was much less refined. So how did Kashtanova develop this initial image into the final version shown above? She went through an extensive iterative process involving hundreds of versions as shown below.”
“Looking at the intermediate versions of “Zarya Holding a Postcard” gives some insight into the thought process involved in creating the final image. Different elements of the final image are created, developed, refined, and relocated. The final image includes multiple elements from different generations of intermediate images all brought together into a cohesive whole. The evolution of the image under the direction of Kashtanova, and her selection, arrangement, compositing, and visual juxtaposition of various image elements all show how her authorial intent guided her use of the Midjourney tool.”
“The Supreme Court has said that only “a modicum of creativity” is necessary to make a work copyrightable.10 As shown in the screenshot evidence above, each one of the images, including each intermediate image above, is the result of Kashtanova’s creative input by means of the prompts and inputs provided to the Midjourney service. Kashtanova visibly guided the creation of each image in accord with her artistic vision.”
On Twitter, Kris Kashtanova stated “A.I. assisted comic book (issue #1) I made, the copyright in the U.S. is still in force and we’re waiting for the Copyright Office to make a decision if I can keep it, if it was a substantial human input. I’ll keep you updated when I hear from them… I did it for my A.I. community. We didn’t have clarity and now we do. It’s not easy to realize that my original story and directing Midjourney for two weeks to get my vision wasn’t enough for it to be copyrightable. But clarity is always better than being in the unknown.”
We wait on the US Government to make it clear. As it stands, AI artwork is copyrightable in the UK. Ireland, India and New Zealand, for now.
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