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.

A Million-Dollar Mistake: The Consequences of Hiring an Inexperienced Lawyer

Andy was a web3, metaverse and AI entrepreneur who was looking to make it big in the tech world. He was driven and focused on building a successful business, and he knew that the key to success was having the right team in place. 

When it came to hiring a lawyer, Andy didn’t take any chances. He went for an experienced lawyer who specialized in law relating to startups, business and specifically, web3, metaverse and AI law. The lawyer was a bit more expensive than what Andy had budgeted for, but he knew that having the right legal representation was worth the extra investment.

Eddie, on the other hand, was a fellow entrepreneur who was looking to make his mark in the tech world. Unlike Andy, Eddie was more cost-conscious and didn’t want to spend a lot of money on legal services. So, he hired an inexperienced and inexpensive lawyer who was just starting out in her career. The lawyer was smart and kind, but she was still learning the ropes and building her network.

As time passed, both Andy and Eddie continued to grow their businesses, but the differences between their experiences started to become clear. Eddie’s inexperienced lawyer made several mistakes in the legal services she provided, which ended up harming his business. 

Eddie’s Lawyer

One of the major mistakes she made was related to Intellectual Property (IP) protection. Eddie’s business was built around new and innovative technology, and it was crucial that he protect his IP rights. However, the inexperienced lawyer was not familiar with the latest IP laws and regulations and did not provide Eddie with proper advice on how to protect his IP. In fact, the need to file for IP was never suggested. This resulted in Eddie not having the necessary legal protection in place, and he ended up losing control over his IP rights.

Another mistake the inexperienced lawyer made was related to contracts. She drafted contracts that were not legally binding, which resulted in disputes between Eddie and his partners. For example, one of the contracts she drafted did not have a clear dispute resolution clause, which caused a delay in resolving a disagreement between Eddie and his partner. This delay resulted in Eddie losing valuable time and resources, which could have been avoided if he had received proper legal advice.

Additionally, the inexperienced lawyer also made mistakes related to jurisdiction and venue issues. Eddie’s business had a global reach, and it was important that he understand the legal implications of doing business in different jurisdictions. However, the inexperienced lawyer was not familiar with these issues and did not provide Eddie with the necessary guidance. This resulted in Eddie facing legal challenges in foreign jurisdictions, which could have been avoided if he had received proper legal advice.

If the above wasn’t enough, the inexperienced lawyer also made mistakes in relation to tax and regulatory compliance. Eddie’s business was operating in a new and rapidly changing legal landscape, and it was important that he understood the latest tax and regulatory requirements. However, the inexperienced lawyer was not familiar with these requirements, and she did not provide Eddie with the necessary guidance or referral to a trusted CPA. This resulted in Eddie facing penalties and fines for non-compliance, which could have been avoided if he had received proper legal advice.

All of these issues, and more, continued to snowball causing problems down the road and put Eddie’s business at risk.

Andy’s Lawyer

On the other hand, Andy’s experienced lawyer provided him with top-notch legal services that were well thought out and extremely good. The lawyer had a vast network of experts and people in the web3, metaverse, and AI spaces, which helped to complement Andy’s business and legal needs. With the help of his experienced lawyer, Andy was able to navigate the complex legal landscape with ease, and his business flourished.

Andy’s experienced lawyer provided him with excellent advice and guidance that was crucial for the success of his business. He was well-versed in the latest laws and regulations related to web3, metaverse and AI, and he provided Andy with tailored advice on IP protection, contract drafting, and jurisdiction and venue issues.

For example, in addition to providing tailored legal advice on IP protection, contract drafting, and jurisdiction and venue issues, he also provided Andy with guidance on how to structure Andy’s business for maximum efficiency, including the best legal entity for his business, tax planning, and regulatory compliance. 

He complimented the above by showing Andy and his team how to attract and retain top talent, including developing employee compensation and benefits packages, and negotiating employment contracts. Finally, he provided advice on how to raise capital and navigate the complex world of fundraising and investment, including how to structure investment rounds, negotiate term sheets, and navigate regulatory requirements.

What We Can All Learn From Andy and Eddie’s Experience

The moral of the story is that, as an entrepreneur, it’s important to think long-term and invest in the right people. This includes having the right lawyer being part of your team. The strength of your foundation will directly result in your long-term success.

In the case of legal services, you often get what you pay for. A less expensive and inexperienced lawyer may seem like a good idea, but the mistakes they may make, even in good faith, can end up costing you much more in the long run. On the other hand, an experienced lawyer who may be a bit more expensive, can provide you with the legal services and advice you need to succeed. Add a global network of contacts and connections into the equation and you have a well defined pathway to success.

Remember that when starting a new venture, think long-term and invest in the right people. It’s a decision that can make or break your business.

Mitch and


⚖️ I’m a lawyer with three decades of experience who enjoys helping others and doing all I can to add value to our community.

🔦  I shine a bright light on others by pinning and sharing their content.

🔔  Please follow me to be notified when I post and go live.

📩 Enjoy my weekly “Web3, Metaverse and AI” LinkedIn Newsletter



“How to Find a Good Web3 Lawyer”


Can You Use Celebrities in Your Social Media Posts and Web3 NFTs?

The short answer is probably not. If you do, you may expose yourself to liability and damages.

If you’re using a celebrity’s name, voice, signature, photograph, video, or likeness in a commercial post, and you haven’t acquired proper permission to do so, then you’re asking for trouble.

Continue reading “Can You Use Celebrities in Your Social Media Posts and Web3 NFTs?”