By James J. Park
On February 21, 2023, the United States Copyright Office (USCO) extended protection for creative works using AI-generative tools by granting limited copyright protection for Kristina Kashtanova’s comic book, Zarya of the Dawn. The USCO found that in its application of the Feist test[1], the text contained more than the required level of “modicum of creativity” and was thus registrable.[2] As such, although the individual comic panels were not found to be copyright protected, Kashtanova’s authorship was.[3]
This finding by the United States Copyright Office was surprising given how narrowly it ruled previously in similar cases. In Thaler v. Perlmutter for example, the DC District Court there ruled against the creator of an AI art generating tool that accepted written prompts, holding that “human authorship is a bedrock requirement of copyright.”[4] In Naruto v. Slater, Naruto, a macaque monkey, took a photographer’s camera to take several selfies. After the photographer published a book with the selfies, PETA filed a next friends suit on behalf of Naruto. The 9th Circuit Court of Appeals ruled against Naruto, interpreting the Copyright Act to apply only to humans.[5]
The USCO ruled ambiguously that AI generated art is copyrightable if there is “sufficient amount of original authorship.”[6] For Kashtanova’s comic, the USCO found one defining characteristic in Zarya of the Dawn that warranted copyright protection: her conscious arrangement of the AI-generated art. The USCO stated in its letter to Kashtanova’s attorney that it found her “selection and arrangement of images and texts” as protectable in compilation.[7]
In contrast, however, it did not find her copyright claims to some of the comic panels sufficient. The Compendium of U.S. Copyright Office Practices (Third Edition) states that sufficient modifications, edits, or revisions to otherwise unprotected material may amount to copyright protection.[8] Although Kashtanova made edits to some of the AI-generated images in Photoshop (characters’ mouth shapes, shading, age lines)[9], these were deemed as insufficient for copyright protection. The USCO emphasized the significant distance between the written prompt entered into Midjourney, the AI art generating tool used by Kashtanova, and the produced image. “Midjourney users lack sufficient control over generate images to be treated as the ‘master mind’ behind them.”[10]
[1] See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).
[2] Letter from Robert J. Kasunic, United States Copyright Office, to Van Lindberg, Re: Zarya of the Dawn (Registration # Vau001480196) at 4 (Feb. 21, 2023) (on file with U.S. Copyright Office) (https://copyright.gov/docs/zarya-of-the-dawn.pdf).
[3] Id. at 1.
[4] Thaler v. Perlmutter, No. 22-1564 (BAH), 2023 U.S. Dist. LEXIS 145823, at *11.
[5] Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2017).
[6] Kasunic, supra note 2.
[7] Id.
[8] U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 313.2 (3d ed. 2021).
[9] Kasunic, supra note 2.
[10] Id. at 9.