A recent decision by the US Copyright Office to cancel part of a copyright registration for artwork that was partially generated by an AI programme could ...
It is possible to infer from this that direct human control and intervention over an AI output will constitute human authorship for the purposes of works with both human and AI input, likely because the human has direct control over, or has “designed”, the output in that scenario. Others might assert that the AI system is merely a tool for the human to create an original work, in the same way that a paintbrush is a tool for an artist. However, the real issue is identifying which parts of the work were created by the human, and which parts were created by the AI, so that copyright protection can be applied to the correct parts. Copyright protection will protect the work to the extent that it is the human creator’s ‘own intellectual creation’, and the first owner of the work will be that creator. Protection lasts 50 years from the date the work is made, which is shorter than the protection that is afforded to literary, dramatic, musical, and artistic works; sound and music recordings; and films with a human author. Kashtanova’s lawyer expressed surprise at the ruling, stating that the Office erred in focusing on the “output of the tool, rather than the input of the human”.
On February 21, 2023, the Copyright Office eclipsed its prior decisions in the area of AI authorship when it partially cancelled Kristina Kashtanova's ...
Assuming that Kashtanova made significant contributions to the images in Zarya of the Dawn, is she any less deserving of joint authorship than a film director? In response, Kashtanova argued that she used Midjourney the way a photographer uses a camera, or the way a graphic designer uses Adobe Photoshop, and that her “core creative input”—i.e., text “prompts” and “previously developed” images—as well as her “iterative process” of selecting Midjourney images led to her creation of Zarya of the Dawn. The Office based its conclusion on “the significant distance between what a user may direct Midjourney to create and the visual material Midjourney actually produces” finding that “Midjourney users lack sufficient control over generated images to be treated as the ‘master mind’ behind them.” The Office also rejected Kashtanova’s argument that she authored the images through her “creative, human-authored prompts” because Midjourney prompts are mere “suggestions” not “orders.” To create artworks—many of which are generally understood to be at the “core” of copyright protection—artists routinely take risks and experiment with different tools, mediums and modes of creation, all of which is, by definition, unpredictable. Thereafter, the Office learned of Kashtanova’s public statements that she used an AI program to create Zarya of the Dawn, initiated cancellation of the registration, and provided Kashtanova with an opportunity to show cause why the registration should not be canceled. In doing so, the Office found that the AI program Kashtanova used—Midjourney—was primarily responsible for the visual output that the Office chose to exclude from Kashtanova’s registration.