US Copyright Office rejects trademark of AI-generated book images: They are 'not the product of human authorship'

An author used AI-generated images in a recently published graphic novel.
The US Copyright Office ruled that while the book is protected, the AI-generated images are not.
The office said the images weren't protected because they are "not the product of human authorship."

The US Copyright Office said that images in a graphic novel created using an artificial-intelligence system would not get copyright protection, Reuters first reported.

The office said in a letter that author Kris Kashtanova has copyright protection for the parts of the "Zarya of the Dawn" that Kashtanova wrote or arranged but not over images created by the AI tool Midjourney. Kashtanova used prompts to have Midjourney produce images for the book.

The Wall Street Journal reported that Kashtanova was initially granted copyright protection for the 18-page graphic novel last year.

The Copyright Office, however, said Kashtanova did not inform it of the use of AI-generated images in the initial copyright application and requested that she update the application or risk losing the copyright.

After months of review, the office ruled on Tuesday that the book would keep it's copyright protection, but the the AI-generated images would not because they are "not the product of human authorship."

Kashtanova applauded the portion of the ruling that said the book would keep its copyright protection, saying it was a "great day for everyone that is creating using Midjourney and other tools. When you put your images into a book like Zarya, the arrangement is copyrightable."

But when it came to denying copyright of the images, the author said the office "didn't understand some of the technology so it led to a wrong decision."

The Copyright Office said that because Midjourney's output of images "starts with a randomly generated noise that evolves into a final image, there is no guarantee that a particular prompt will generate any particular visual output," and that therefore the author didn't create them.

Kashtanova disagrees, saying that "it is fundamental to understand that the output of a Generative AI model depends directly on the creative input of the artist and is not random."

—Kris Kashtanova (@icreatelife) February 22, 2023

"My lawyers are looking at our options to further explain to the Copyright Office how individual images produced by Midjourney are a direct expression of my creativity and therefore copyrightable," Kashtanova said.

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