New Copyright Decision re Midjourney AI

Zarya of the Dawn (Registration # VAu001480196)

Can you copyright an image created by Midjourney artificial intelligence?

The short answer is you CANNOT copyright the final Midjourney AI generated image. YOU CAN copyright the “Work’s text” (the written prompt).

Here’s a summary of “Zarya of the Dawn (Registration # VAu001480196)” submission as described by the Copyright Office in its letter dated February 21, 2023. Please note that no legal advice is being given and the following disclaimer is incorporate herein.

Discussion From Copyright Letter

As described in the application and accompanying deposit materials provided by Ms. Kashtanova, the Work is a “comic book” consisting of eighteen pages, one of which is a cover. The cover page consists of an image of a young woman, the Work’s title, and the words “Kashtanova” and “Midjourney.” The remaining pages consist of mixed text and visual material. A reproduction of the cover page and the second page are above.

On September 15, 2022, Ms. Kashtanova submitted an application for the Work and copies of each page of the Work as the deposit copy. In her application, Ms. Kashtanova listed the author of the Work as “Kristina Kashtanova” and stated that she had created a “comicbook.” The application did not disclose that she used artificial intelligence to create any part of the Work, nor did she disclaim any portion of the Work (emphasis added).

The Office reviewed the application on the same day and registered the Work as registration number VAu001480196. Shortly after registering the Work, the Office became aware of statements on social media attributed to Ms. Kashtanova that she had created the comic book using Midjourney artificial intelligence. Because the application had not disclosed the use of artificial intelligence, the Office determined that the application was incorrect, or at a minimum, substantively incomplete. In a letter dated October 28, 2022, the Office notified Ms. Kashtanova that it intended to cancel the registration unless she provided additional information in writing showing why the registration should not be cancelled.

On November 21, 2022, the Office received a timely response from Ms. Kashtanova’s attorney, Mr. Van Lindberg. Letter from Van Lindberg, Taylor English Duma LLP, to U.S. Copyright Office (Nov. 21, 2022) (“Kashtanova Letter”). The letter describes Ms. Kashtanova’s creation of the Work, including specific information about her use of Midjourney. Mr. Lindberg argues that the Work’s registration should not be cancelled because (1) Ms. Kashtanova authored every aspect of the work, with Midjourney serving merely as an assistive tool, and, (2) alternatively, portions of the work are registrable because the text was authored by Ms. Kashtanova and the Work is a copyrightable compilation due to her creative selection, coordination, and arrangement of the text and images.

After explaining the history of Ms. Kashtanova’s application process along with a detailed legal analysis of copyright law as it applies to AI generated art, the Copyright Office determined that the images in the Work that were generated by the Midjourney artificial intelligence technology are not the product of human authorship and not protected by copyright. At the same time, the Copyright Office also determined that Ms. Kashtanova is the author of the Work’s text (the typed prompts) as well as the selection, coordination, and arrangement of the Work’s written and visual elements (as compiled in the comic book) and that part of the submission is protected by copyright.

Read the entire letter from the US Copyright Office dated February 21, 2023. See an earlier letter on the “Entrance to Paradise” AI copyright matter dated February 14, 2022, with similar findings.

Author: Mitch Jackson

I'm a California trial lawyer trying to fix the world one client, cause, and digital interaction at a time.

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