Copyright Is the Latest Battle in the War Over A.I.

Increasingly sophisticated artificial intelligence (A.I.) is inching further into the mainstream, and nobody is quite sure what to make of it yet. Students protested after university administrators used the A.I. text generator ChatGPT to craft a statement after a mass shooting. Systems like Midjourney can create pieces of art so sophisticated, they can win awards—to the chagrin of flesh-and-blood artists.

Now the U.S. Copyright Office (USCO) has weighed in on the debate and determined that images produced by A.I. are not copyrightable.

In 2022, artist Kristina Kashtanova released the graphic novel Zarya of the Dawn for free online. Kashtanova wrote all the text and arranged the pages for the book but used Midjourney to create all of the visual images by feeding it text prompts. They applied for a copyright on the work, which the USCO granted in September 2022, specifically “to make a precedent.”

But the following month, the USCO reversed its position based on Midjourney’s role, stating “Copyright under U.S. law requires human authorship. The Office will not knowingly grant registration to a work that was claimed to have been created solely by machine with artificial intelligence.”

In a decision released last week, the USCO determined that Kashtanova could copyright the comic’s text and the “selection and arrangement of images and text” but not the images themselves.

The case raises the question of what, exactly, constitutes an original creation when an A.I. is involved, as well as who owns it. Last year, VentureBeat asked “Who owns” the images created by OpenAI’s DALL-E, another A.I. image generator. Legal experts, and even OpenAI itself, seemed unsure.

Typically, in a work-for-hire situation, whoever commissions a work owns the copyright. And in a decision last year, the USCO concluded that an A.I. could not copyright its own art anyway “because copyright law…requires human authorship.”

To be eligible for copyright under U.S. law, a work must demonstrate “at least a modicum” of