The topic of AI art, or artwork generated by Artificial Intelligence, is being debated more and more frequently. Multiple parties are struggling with how to classify it, and what it means for the future of intellectual property. During the last year, legal precedents have been creating a hazy path into this uncharted territory.
Previously, we posted about class action lawsuits filed by artists against Stability AI, Midjourney, and DeviantArt. They claim that AI firms and other online art sources are infringing their rights, which occurs during ‘training’ of the technology. The plaintiffs contend they sampled billions of online images without permission.
Recent USCO Determination
Now on another legal front, the U.S. Copyright Office (USCO) released a decision in February 2023 where they determined that imagery that is generated by AI cannot be copyrighted.
Kristina Kashtanova, a comic book artist, released the graphic novel Zarya of the Dawn for free online. She wrote the text and arranged the page layouts. Kashtanova then used Midjourney AI to create the visual images for the pages, creating the text prompts to be fed to the AI system.
She then applied for a copyright on the work in 2022, which was initially granted in September by the USCO. However, the USCO reversed its position the following month. Explaining the reversal, they stated “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.”
Further, USCO stated that Kashtanova could copyright the text she wrote for the novel and the “selection and arrangement of images and text.” The images, however, did not meet the threshold for protection.
This is not the only instance where AI artwork has failed to meet the criteria for copyright protection. Stephen Thaler started a review process for his creation, A Recent Entrance to Paradise, with the USCO regarding his AI generated imagery. However, after a lengthy review, a three-person board decided the art “lacks the human authorship necessary to support a copyright claim.
The board explained that case precedent has led to legal decisions that direct courts to be “consistent in finding that non-human expression is ineligible” for protections issued under copyright.
The New Path Ahead for Creative Works
In the light of recent legal decisions, and the uncertainty of where this process will take us in years to come, Crystal Peak can guide you to solid results. We listen to your needs, and deliver the creative spark that only humans can. We offer a large scope of services including traditional and digital illustration; Photoshop compositing, touch-up and photo restoration; and graphic design for any print or online project.