Back in 2022, Kristina Kashtanova applied for copyright registration with the US Copyright Office (USCO) for her comic book, Zarya of the Dawn. The USCO initially granted the copyright registration but when it realized that the book’s images were created using Midjourney, the USCO stripped the author of her copyright. IP attorney Van Linberg then stepped in to argue the matter with the USCO and on February 21, 2023 the US Copyright Office responded, allowing for copyright on the text of the comic book as well as the selection, coordination and arrangement of the comic book’s textual and visual elements, but expressly disallowing any copyright protection with respect to any of the comic book’s images.
The crux of the USCO’s refusal to recognize any copyright interest in the images rests on the idea that Midjourney’s output is unpredictable and that the prompts users provide to it are mere suggestions, with too much “distance between what a user may direct Midjourney to create and the visual material Midjourney actually produces” such that “users lack sufficient control over generated images to be treated as the “mastermind” behind them.” Repeatedly, the USCO seems to argue that the final result has to reflect the artist’s “own original conception,” even going so far as to argue that the “process is not controlled by the user because it is not possible to predict what Mijourney will create ahead of time.”
This reasoning seems flawed, though, because there are a lot of examples of copyrightable work where it’s fair to say that the author could not predict the outcome at the beginning of the process: Bob Ross was famous for paintings with “happy accidents,” Jackson Pollock and Edwin Parker Twombly, Jr.’s splatter paintings, nature documentaries based on hundreds of hours of hidden camera footage, and the many photographs in which the events ultimately caught on film were complete surprises to the people behind the camera. And this is to say nothing of an entire genre of music based precisely on not knowing what will result: jazz. Historically, the USCO has recognized copyright in a number of works where the author did not have 100% control of the final output.
The reasoning seems overly complicated. It would probably have been simpler for the USCO to just write that the “expression” is all produced by a computer and therefore isn’t authored by Kashtanova. That would have drawn a bright line around generative AI output. The USCO makes a point that if Kashtanova had commissioned an artist to draw these images, then the artist would have been the author since the artist chose how to express the ideas. However, that line of reasoning would seem to fall apart when the “prompt” becomes sufficiently long and detailed enough to warrant its own copyright. Surely, at some point, sufficient levels of input and management would move Kashtanova into the co-author slot? Even when commissioning a work, it’s not uncommon for the commissioned artist/creator to be given certain copyrightable pieces to work with and/or incorporate into the final output.
It seems to me that at least under current legal precedents, there should be some theoretical level of prompt sophistication that should garner the user co-authorship over the output. The USCO suggests that sufficiently creative alterations to the images would have yielded Kashtanova some copyright interest in the images. However, it’s not clear to me why using a paintbrush in Photoshop to change the color of a shirt is all that different from simply writing a command to the computer to change the color of the shirt via a prompt. In both cases, the user is simply using a tool to express their vision, one is just more complicated than the other. In some ways, the Midjourney prompts can almost be seen as a higher level programming language – following user commands and abstracting away ever more technical details in the process. While iterations in Midjourney prompts may produce more variable results than other image manipulation tools, the fact that using Midjourney to refine a picture is oftentimes slower than doing the same refinement in Photoshop, doesn’t really change the fact that the desired refinement is still possible through infinite iteration. While the output for any one prompt is “unpredictable” as the USCO letter says, many iterations can, in fact, lead to a specific desired result.
On the other hand, it’s not obvious that Kashtanova needs any more copyright protection than what the USCO granted, for purposes of incentivizing further creative output. The copyright protection she has would prevent someone else from publishing her book in its entirety. It would also prevent someone else from taking the text in her book and adding their own images or re-using her characters in other books. The only thing anyone could freely re-use would be the images. The images alone aren’t a substitute for the book. Lack of copyright protection on the images might eat into her ability to merchandise some of the images if others are selling objects with those images on them, but perhaps monetarily that’s a fair trade for not having painted them herself in the first place?
This seems like a fine individual outcome, but the reasoning behind it matters a great deal for cases going forward. The Copyright Office is incorrect in stating that users lack control, and should choose a more accurate and legible line.
