Copyright Office Walks Back AI Comic Rights As It Navigates New Creative Scape
By Mikelle Leow, 22 Dec 2022
Can AI-created works be copyrighted? That’s the question authorities are still asking themselves. For now, at least, they have their foot down on the idea that manmade works are the only natural way to do it.
In September, the United States Copyright Office (USCO) granted Kris Kashtanova, a self-proclaimed “prompt engineer” who goes by she and they pronouns, ownership rights for her comic book Zarya of the Dawn, which she had “illustrated” using the text-to-image generator Midjourney.
Did you know: In the US, creators don’t have to file any papers to copyright their work—protection is assigned automatically. However, you will need to register your project in order to bring an infringement claim to court and be awarded damages.
Kashtanova was recommended by a lawyer friend to pursue legal ownership of the comic. The author explained then that they wanted to “make a case that we do own copyright when we make something using AI.”
The USCO’s earlier decision to authorize Kashtanova as the copyright holder of the comic book spelled profound changes for the industry. This was the first time an AI-generated work was approved by the authority, which previously turned down a protection claim by Stephen Thaler, the founder of Missouri AI firm Imagination Engines, for his AI “painting,” A Recent Entrance to Paradise.
Zarya of the Dawn, a story inspired by the author’s grandmother, follows a non-binary person on their adventure to collect mental health tools in between worlds so as to understand their emotions better.
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The tale has been translated into 15 languages by AI sympathizers, according to the author. Kashtanova came up with the concept and story of the book on their own, and they only enlisted artificial intelligence to generate the illustrations.
Kashtanova’s confidence over ownership waned on October 28, when they received notice from the copyright office that it was reversing its decision to award them the copyright to the book, insisting that works must be created by humans to be properly protected. CBR.com recently picked up this piece of news.
Kashtanova said the USCO had “overlooked” the part about the comic being created with Midjourney, even though she had credited the AI tool on the cover page and was open about the way Zarya of the Dawn was made.
With that being said, Midjourney wasn’t mentioned in the copyright application, where Kashtanova had just described the book as “AI-assisted.”
Kashtanova and her attorney have now clarified that her copyright over the comic “is still in force.” As explained by her lawyer, the USCO can revoke a registration if it learns that it has made an error. However, “When [officials] are considering revoking a copyright, they give the copyright registrant the chance to explain why they should keep the copyright in force.”
The author has submitted their explanation as to why they feel the work should be protected.
As of the time of publication, the copyright office has yet to make a response. Until a decision is made by the office, Kashtanova remains as the rightful owner of the comic.
The wave of AI art creation seems to have swept the world almost overnight, enabling anyone without an art background or traditional skills to identify as an “artist.” Its accelerated rise means that lawmakers have yet to establish policies to better protect human creators.
This is murky territory we are entering, as AI tools like Midjourney and the more popular DALL-E are riding on the backs of actual humans to nurture their “talents.” Every time you generate one of these works, you’re cooking up a combination of thousands or even millions of unauthorized, original work by real artists. At the same time, there are people who embrace this technology as the harbinger for the next generation of creativity.
If you’re concerned about where your worked has traveled by the hands of AI, there’s a way to gain some clarity. A new search engine called Have I Been Trained? lets creatives know if their photo or artwork is one of nearly six billion images that helped train AI art generators.
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