American copyright regulations concerning works resulting from Artificial Intelligence (AI) have just experienced a new episode with a decision by the Copyright Office. This US federal agency is responsible for registering and managing copyrights in the United States. It is placed under the authority of the Library of Congress and produces regulatory texts relating to copyright that become part of the federal legislation of the United States.
The agency records copyright ownership information when it deems the work to be creative and to be original. Thus, works created by natural elements, animals or plants cannot be registered under copyright protection. The same is true for the “works produced by machines or random or automatic mechanical processes that do not involve creative input or human intervention ».
The Copyright Office had created doubt by granting in September 2022 the status of author’s work to the entire comic strip, Zarya of the Dawn, written by Kris Kashtanova, artist and artificial intelligence consultant. But a few weeks later, the Copyright Office announces the reopening of the case, accusing the artist of not having specified the use of Midjourney, an AI software, in the creation of the comic.
The agency has returned to its first certificate and begins by considering that Kris Kashtanova is the author “of the texts of the work, but also of the selection, coordination and organization of the written and visual elements of the work”. However, she points out that “the images of the work generated by Midjourney technology are not the result of human creation”. Consequently, the original certificate is cancelled, replaced by a document that recognizes the copyright only on the texts, the organization and the layout of the comic. The illustrations produced by Midjourney for Zarya of the Dawn are not individually protected.
To justify its decision, the Copyright Office relies on a jurisprudence of 1997 concerning the Urantia Book allegedly written by “non-human spirit creatures”. The American judge concluded that the book could be protected by copyright only if “a human selection and an organization of revelations” had taken place. This legal point of human intervention justifies the reassessment of the case Zarya of the Dawn.
However, what about human intervention in the generation of images? Indeed, if Midjourney generates images, the tool relies on « prompts », that is, directives. Kris Kashtanova therefore guided the production of the images by Midjourney. The Copyright Office settles the question by recalling that despite the instructions that can be given to an artificial intelligence, “such instructions do not give the user enough influence on the outcome. It is the AI technology that determines how to implement the instructions”so it’s not possible to predict what Midjourney will create.
The agency said artists must now indicate whether their work was created using AI when submitting it for registration. Applicants will be contacted by the office who will determine how to proceed. Decisions will be made on a case-by-case basis. This new rule is retroactive, which means that artists who have already submitted their work for registration without declaring the use of AI will have to correct their declaration.
2023-05-15 09:56:18
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