Last year, the Federal Circuit held that the term “inventor” under the Patent Act must identify a human being. Last month, following that decision, the Copyright Office partially canceled Kristina Kashtanova’s copyright registration for her graphic novel, “Zarya of the Dawn.” Kashtanova’s registration had not disclosed that the artwork associated with the novel was created using Midjourney, an artificial intelligence (AI) program that converts text into images.
The Copyright Office found that “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 [and] that authorship is protected by copyright.” Yet, the Midjourney-created images “are not the product of human authorship,” and Kashtanova failed to exclude them from her application. Thus, the registration was canceled in favor of a registration covering only the expressive material Kashtanova created.
Recently, the Copyright Office released guidance pertaining to AI-generated works. It is made clear that “copyright can protect only material that is the product of human creativity.” With that, it indicated that there will be a case-by-case analysis respecting “whether the AI contributions are the result of ‘mechanical reproduction’ or instead of an author's ‘own original mental conception, to which [the author] gave visible form.’ The answer will depend on the circumstances, particularly how the AI tool operates and how it was used to create the final work.”
Currently, AI cannot generate anything without a data input and some direction. The Copyright Office will thus focus in its analysis on the extent of human conception underlying the final work.