In Brief:  The Copyright Office will register a work that has some AI.

Here’s What Happened:

In the past, the Copyright Office has refused registration of works created by non-humans. For example, photographer, David Slater, didn’t own the copyright in a selfie taken by a macaque monkey who used David’s camera.

The big thing these days is the explosion of computer applications that allow the generation of content using artificial intelligence or “AI.” Ask it a question and it can write a term paper (ahem) or create a graphic.

Kris Kashtanova, a comic book artist, used an AI art generator, Midjourney AI, to create images for a comic booked entitled “Zarya of the Dawn”. Kris used the AI generated images that fit the theme of the comic book, arranged them in context and added a story in text.

Kris registered the “Zarya of the Dawn” with the Copyright Office. The Copyright Office then cancelled the registration. The Copyright Office notified Kris that copyright registration can only be granted to works created by humans.   

Then the Copyright Office reversed itself again. In a letter to Kris, the Copyright Office explained that the registration would be allowed to go through as long the AI generated graphics were excluded from the registration. The Copyright Office issued a new registration certificate that covered the original text as well as the selection, coordination and arrangement of the AI images; but not the AI images.

Why You Should Know This: In its letter to Kris, the Copyright Office stated that it was not taking a position on whether editing or making alterations to AI generated content would be copyrightable. What we do know is that a human touch is required for copyright registration.

BTW, I explored the free version of ChatGPT, one of the most popular AI generators. I asked it: “How Does Copyright Work”. The response was a well-organized and succinct summary of what copyright protects and for how long. However, the AI generated content didn’t cover any of the nuances of copyright protection such as that there is no protection for facts, titles and functional objects. Nor did it mention fair use. So I asked about fair use. Again, I got well-organized succinct answer. And again, it didn’t cover the nuances of fair use such the concept of transformative use. It did, however, recommend consulting a legal expert to determine fair use. It looks like ChatGPT knows it’s not an attorney. (Insert audible sigh of relief, here).

Case Information: Zarya of the Dawn (U.S. Copyright Reg. VAu001480196) (U.S. Copyright Office Correspondence, “Re: Zarya of the Dawn (Registration # VAu001480196)”, Feb. 21, 2023

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