In September 2022, the US Copyright Office (USCO) issued the Zarya Of The Dawn Graphic Novel Registered for artist and AI researcher Kristina Kashtanova. The picture story was produced in part using the Midjourney machine learning model, making it the first public case in which copyright protection was explicitly granted to AI art. While registration with the US Copyright Office is not a requirement for copyright protection, it provides practical benefits such as prima facie evidence of protectability in a court of law and is a requirement for copyright infringement suits in the United States.
Self-portrait by Till Jaeger
dr Till Jaeger is a specialist lawyer for copyright and media law and has been a partner in the law firm JBB Rechtsanwälte since 2001. A particular focus is on the legal issues of open source software, creative commons licenses and open data. Jaeger is co-founder of the “Institute for Legal Questions of Free and Open Source Software” (ifrOSS) and also works there scientifically in software law and copyright.
Kashtanova’s online reports on the registration have attracted considerable attention, which in turn has prompted the US Copyright Office to review the decision. Because copyright protection in the USA, as in Germany, requires a work created by a human being. In the words of the German copyright law: a “personal intellectual creation” (§ 2 Abs. 2 UrhG).
In her statement, Kashtanova claims to have written the entire text of the graphic novel herself and to have used Midjourney as a tool to create the images. Much like a photographer can compose a scene and the camera is used as a tool for imaging, Midjourney’s image generation was designed by the artist in a laborious and iterative process, as Kashtanova’s attorney in his counter-notice to the US Copyright Office.
Book cover Kristina Kashtanova, “Zarya of the Dawn”
The case has not yet been finally decided (as of February 2023), but clearly shows the problems of classic copyright law when dealing with AI-generated texts, images or other types of work. As recently as February 2022, the US Copyright Office had rejected Steven Thaler’s application for registration of the image “A Recent Entrance to Paradise” on the grounds that it was a purely machine-generated work not an “original work of authorship” within the meaning of US copyright law (17 USC § 102a), since this always requires a human design.
Stephen Thaler has sued the Copyright Office: “A recent entrance to Paradise” (currently considered in the public domain)
Unlike Kashtanova, however, Thaler had justified the registration by saying that the image was “generated autonomously by a computer algorithm running on a machine” and that the computer-generated work was to be registered as a commissioned work for the owner of the “creativity machine”. In the Thaler case, the question was whether copyright protection is limited to the creative achievements of a human being, which was unequivocally affirmed by the US Copyright Office, while in the Kashtanova case, the question was whether and under what conditions images, despite the use of AI can represent a creative achievement of the user of the AI.
Human creativity as a starting point
The crucial question will be whether the images produced – or other outputs generated by AI – are essentially a work of human authorship, with the computer merely serving as a tool, or whether the traditional elements of authorship are present in the work (like the artistic expression) was created by a machine and not by a human being.
In terms of copyright, the starting point in the USA and in Germany is very similar. Per 17 USC § 102 are the subject of copyright protection “original works of authorship fixed in any tangible medium of expression“, in § 2 Abs. 2 UrhG it says: “Works within the meaning of this law are only personal intellectual creations.” It has always been concluded from these definitions that only a human achievement can enjoy copyright protection. This is about being human: A monkey selfie is therefore excluded from such a property right from the outset.This also applies to pure machine products.
