The Volokh Conspiracy
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Copyright Office: No Copyright Protection for Certain AI-Generated Works
Law from the dawn of the dawn of the AI age.
From a letter sent Tuesday:
The United States Copyright Office has reviewed your letter dated November 21, 2022, responding to our letter to your client, Kristina Kashtanova, seeking additional information concerning the authorship of her work titled Zarya of the Dawn (the "Work"). [Zarya itself means "dawn" in Russian, which seems likely to be one of Ms. Kashtanova's primary languages. -EV] Ms. Kashtanova had previously applied for and obtained a copyright registration for the Work, Registration # VAu001480196. We appreciate the information provided in your letter, including your description of the operation of the Midjourney's artificial intelligence ("AI") technology and how it was used by your client to create the Work.
The Office has completed its review of the Work's original registration application and deposit copy, as well as the relevant correspondence in the administrative record. We conclude that Ms. Kashtanova is the author of the Work's text as well as the selection, coordination, and arrangement of the Work's written and visual elements. That authorship is protected by copyright. However, as discussed below, the images in the Work that were generated by the Midjourney technology are not the product of human authorship. Because the current registration for the Work does not disclaim its Midjourney-generated content, we intend to cancel the original certificate issued to Ms. Kashtanova and issue a new one covering only the expressive material that she created….
Turning to the individual images in the Work, the Office must consider the impact of Ms. Kashtanova's use of Midjourney's artificial intelligence technology in its copyrightability analysis…. Midjourney offers an artificial intelligence technology capable of generating images in response to text provided by a user. Midjourney operates on top of an unaffiliated third-party communication service called Discord, which is made up of individual servers operated by its users…. Users operate Midjourney through "prompts," which are text commands entered in one of Midjourney's channels…. After a user provides Midjourney with a prompt, the technology will generate four images in response. The images are provided in a grid, and buttons underneath the grid allow users to request that Midjourney provide a higher-resolution version of an image (e.g., U1, U2, U3, U4), create new variations of an image (e.g., V1, V2, V3, V4), or to generate four new images from scratch ….
It is relevant here that, by its own description, Midjourney does not interpret prompts as specific instructions to create a particular expressive result. Because Midjourney "does not understand grammar, sentence structure, or words like humans," it instead converts words and phrases "into smaller pieces, called tokens, that can be compared to its training data and then used to generate an image." …{To obtain the final image, [Kashtanova] describes a process of trial-and-error, in which she provided "hundreds or thousands of descriptive prompts" to Midjourney until the "hundreds of iterations [created] as perfect a rendition of her vision as possible."}
Based on the record before it, the Office concludes that the images generated by Midjourney contained within the Work are not original works of authorship protected by copyright. Though she claims to have "guided" the structure and content of each image, the process described in the Kashtanova Letter makes clear that it was Midjourney—not Kashtanova—that originated the "traditional elements of authorship" in the images….
Rather than a tool that Ms. Kashtanova controlled and guided to reach her desired image, Midjourney generates images in an unpredictable way. Accordingly, Midjourney users are not the "authors" for copyright purposes of the images the technology generates. As the Supreme Court has explained, the "author" of a copyrighted work is the one "who has actually formed the picture," the one who acts as "the inventive or master mind." A person who provides text prompts to Midjourney does not "actually form" the generated images and is not the "master mind" behind them. Instead, as explained above, Midjourney begins the image generation process with a field of visual "noise," which is refined based on tokens created from user prompts that relate to Midjourney's training database. The information in the prompt may "influence" generated image, but prompt text does not dictate a specific result. Because of the significant distance between what a user may direct Midjourney to create and the visual material Midjourney actually produces, Midjourney users lack sufficient control over generated images to be treated as the "master mind" behind them.
The fact that Midjourney's specific output cannot be predicted by users makes Midjourney different for copyright purposes than other tools used by artists. Like the photographer in Burrow-Giles, when artists use editing or other assistive tools, they select what visual material to modify, choose which tools to use and what changes to make, and take specific steps to control the final image such that it amounts to the artist's "own original mental conception, to which [they] gave visible form." Users of Midjourney do not have comparable control over the initial image generated, or any final image. It is therefore understandable that users like Ms. Kashtanova may take "over a year from conception to creation" of images matching what the user had in mind because they may need to generate "hundreds of intermediate images."
Nor does the Office agree that Ms. Kashtanova's use of textual prompts permits copyright protection of resulting images because the images are the visual representation of "creative, human-authored prompts." Because Midjourney starts with randomly generated noise that evolves into a final image, there is no guarantee that a particular prompt will generate any particular visual output. Instead, prompts function closer to suggestions than orders, similar to the situation of a client who hires an artist to create an image with general directions as to its contents. If Ms. Kashtanova had commissioned a visual artist to produce an image containing "a holographic elderly white woman named Raya," where "[R]aya is having curly hair and she is inside a spaceship," with directions that the image have a similar mood or style to a "Star Trek spaceship," "a hologram," an "octane render," "unreal engine," and be "cinematic" and "hyper detailed," Ms. Kashtanova would not be the author of that image. Absent the legal requirements for the work to qualify as a work made for hire, the author would be the visual artist who received those instructions and determined how best to express them. And if Ms. Kashtanova were to enter those terms into an image search engine, she could not claim the images returned in response to her search were "authored" by her, no matter how similar they were to her artistic vision.
The Office does not question Ms. Kashtanova's contention that she expended significant time and effort working with Midjourney. But that effort does not make her the "author" of Midjourney images under copyright law. Courts have rejected the argument that "sweat of the brow" can be a basis for copyright protection in otherwise unprotectable material….
