By Guest Contributor Victoria E. Thornton

You may have seen online images that were created using artificial intelligence (AI) and wondered whether copyright law protects the artist’s efforts. In most instances, apparently not. A recent landmark decision by the United States Copyright Office holds that copyright protects only human-made works.

The Copyright Office’s February 21, 2023, published decision explains why artificially made works are not protected. “Zarya of the Dawn” is a comic book authored by Kristina Kashtanova and illustrated using Midjourney, an artificial intelligence program. See U.S. Copyright Office Correspondence to Kristina Kashtanova (Feb. 21, 2023). Though the Office granted limited registration as to the text of the work as well as the selection, coordination, and arrangement of the work’s written and visual elements, it declined to protect the artificially generated illustrations. Id. at 1.

U.S. Copyright law protects only “the fruits of intellectual labor” that are related to human expression. Id. at p.4, n.4 (quoting Trade-Mark Cases, 100 U.S. 82, 94 (1879). The Copyright Office compared the case to photographs, which are artistic works created with the help of a device but are still protected by copyright. Unlike the artificially made images, the end product of a photograph still represents the “original intellectual conceptions of the author.” Id. at 3.

Yet, the specific artificial intelligence used to create the “Zarya of the Dawn” illustrations, does not allow the author to engage in the creative process in the same manner. The Office explained that Midjourney is a program that allows users to upload a specific prompt, whereby the AI then generates four different images based on its training data. Id. at 8. The Office emphasized that a Midjourney user, unlike photographers who generally know what their images will look like while creating them, cannot predict what the program will create. Id. The artist does not control the work’s outcome, the AI does.

The Office reasoned that, although the Midjourney user prompts the program to a desired result, the user’s influence is no different from a client commissioning an artist to create an image under general directions. Id. at 10. Absent establishing the work as a work made for hire, the artist is the author of the work. Id.

Ultimately, the Office held that any edits to the artificially generated illustrations in “Zarya of the Dawn” were still too minor to supply the “necessary creativity for copyright protection.” Id. at p.11-12. Nonetheless, the Office reasoned that if the author made more substantive edits, the images could potentially represent a work of “human authorship.” Id.

The decision did not resolve whether other artificial intelligence programs which allow for greater human-based expression may still qualify for copyright protection. Id. at 10. As we continue to learn more about artificial intelligence and its ability to generate creative works at the hands of human artists, we could see these works gain copyright protection in the future. What the Copyright Office’s decision makes clear, however, is that the author must have direct control over the work’s outcome rather than the tools used to create it.

To learn more about this decision and discuss its implications for your business, contact the author, Victoria E. Thornton, at vthornton@gdldlaw.com.