A recent decision by the U.S. Copyright Office established that the United States does not recognize copyright protection for images created by AI-driven image generators.
The Copyright Office recently granted copyright registration for a comic book, Zarya of the Dawn, after an individual filed an application with the agency. In the application, the individual listed herself as the author and stated that she created the comic book.
Shortly after registering the work, however, the Copyright Office discovered that the individual used Generative AI services to create the images in the book.
In response, the office canceled the original certificate and issued a new certificate covering only the text, selection, coordination, and arrangement of the work’s written and visual elements.
The images in the work itself were not granted any copyright protections.
The United States Copyright Act, states that a work may be registered if it is “an original work of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102(a). Generally, courts have limited the interpretation of “work of authorship” only to include creations of human authors. Further, the Copyright Office explained that, according to the Compendium of U.S. Copyright Office Practices, the agency may “not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.” U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 313.2 (3d ed. 2021).
The individual seeking to register the work argued that the agency’s decision did not acknowledge the creativity and effort required to use artificial intelligence as a creative tool. She stated that she guided the structure and content of each image through hundreds of iterations until the generative AI system produced the precise image she desired. As such, she claims that the process of using the generative AI is similar to using other computer-based tools, such as Adobe Photoshop.
In response, the office explained the difference between computer-based tools and generative AI by pointing out that the latter unpredictably generated images, regardless of how the user specifies the prompts. While the user prompts may impact the image generated, they do not dictate the “specific” resulting image.
In the Supreme Court case Burrow-Giles Lithographic Co. v. Sarony, an author of a work is one “who has actually formed the picture” and acts as “the inventive or mastermind.” 111 U.S. at 61 (1884). Because there is no guarantee that a prompt will generate a specific image, the Copyright Office reasoned that the individual requesting registration could not be an “inventive or mastermind” of the images, thus finding that she did not author the images generated by the AI.
This decision on copyright protection for AI-generated images is bound to influence strategies throughout every creative community, including every business seeking inexpensive imagery for marketing, advertising and promotional purposes, as more AI-generated content proliferates.
Potomac Legal Group advises businesses, creatives and tech startups seeking assistance in copyright law and claims. AI is bringing significant changes to the rights of intellectual property owners, and we assist businesses and creators in understanding emerging laws, as well as pursuing and defending infringement claims.
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