The output of AI-driven image generators is not protected by copyright in the United States.
What’s new: The U.S. Copyright Office concluded that copyright does not apply to images generated by the image generator Midjourney.
Split decision: In September, 2022, the agency granted a copyright for the comic book Zarya of the Dawn. The following month, however, it alerted author Kris Kashtanova of their intent to cancel the copyright after they learned from the author’s social media posts that Midjourney had produced the images. Kashtanova appealed the decision, and the agency revised its decision by granting a copyright for the text and arrangement of the images on its pages.
Humans versus machines: The agency explained its rationale:
- The Copyright Office’s code of practices state that it “will refuse to register a claim if it determines that a human being did not create the work.” (Remember the battle over the famous monkey selfie?) An 1884 U.S. Supreme Court decision defined a work’s copyright holder as its “inventive or master mind.”
- Users can’t control Midjourney’s output. In this way, the model differs from “human-guided” hardware like cameras or software like Adobe Photoshop whose output is subject to copyright.
- Even if Kashtanova had expended great effort writing prompts, the author had not created the images.
- Kashtanova subsequently edited the images using Photoshop, but the alterations were too small to affect the works’ eligibility for copyright.
Mixed results: Kashtanova said the agency’s decision to protect the text and layout was “great news” but vowed to continue lobbying for copyright protection of the images as well.
Yes, but: Different countries are likely to decide such issues differently, creating potential conflicts as intellectual property moves over the internet. While the U.S. has denied protection for intellectual property created by AI, in 2021 South Africa issued a patent that names an AI system as the inventor of a food container with unique properties.
Why it matters: Who owns the output of generative AI models? No one — in the U.S., at least. This decision is bound to influence business strategies throughout the publishing and creative communities as generated text, images, video, sound, and the like proliferate.
We’re thinking: It takes imagination and skill to generate a satisfying picture using Midjourney including envisioning an image, composing an effective prompt, and following a disciplined process over multiple attempts. Denying the creativity, expertise, and contribution of people who use AI as a creative tool strikes us as a mistake.