Intellectual Property Insights from Fishman Stewart PLLC
Newsletter – Volume 23, Issue 11
Share on Social
US Copyright Protection for AI-Generated Works
By Kristyn Webb
The US Copyright Office recently made headlines for partially revoking a copyright registration it previously issued for an AI-generated graphic novel. Artist Kristina Kashtanova used the Midjourney platform to create images that she included in her graphic novel called Zarya of the Dawn. Then, Kashtanova filed an application to register the copyright listing herself as the sole author of the work. The Copyright Office issued a registration, and shortly thereafter, Kashtanova posted on social media that she had obtained the first copyright registration for an AI-generated work.
The Copyright Office became aware of Kashtanova’s posts, reopened the case, and issued a new registration, covering only the materials created exclusively by Kashtanova: the text, and the selection and arrangement of the images and text. The individual images created by Midjourney were excluded from copyright protection because the Copyright Office determined that Kashtanova’s user prompts were insufficient to make her an “author” of the Midjourney image outputs. The Copyright Office reasoned that, unlike other tools used by artists, like Adobe Photoshop, a Midjourney user cannot control or predict the outputs that Midjourney will generate.
Kashtanova has hinted at plans to appeal the Copyright Office’s decision. If so, the federal court hearing the matter will have to decide whether it agrees with Kashtanova, and that Midjourney is no different from any other artistic tool. After all, the element of randomness and unpredictability in the creative process has not resulted in forfeiture of copyright protection in other mediums, like a Jackson Pollock painting, or the Zapruder film. Or the federal court may side with the Copyright Office and find that whatever creativity there is in the output comes from the AI machine, rather than the human user. Regardless of which side the court chooses, the outcome will have profound effects on the legal protection available for AI-generated artwork.
Since issuing its decision in Kashtanova’s case, the Copyright Office has issued guidance on registration of AI-generated content. In short, the Copyright Office recognizes that some AI-generated content may attract copyright protection where there is sufficient human involvement in the creative process, but that copyright protection will only extend to the human-authored aspects of the work. Further, any AI-generated content must be disclosed and disclaimed in the application process before the Copyright Office, or if a registration has already issued, a supplementary registration should be filed.
We will keep you updated as these areas of law and technology develop.
Kristyn Webb is the Group Leader of Fishman Stewart’s Copyright Practice Group, and is currently earning a Master’s Degree in Copyright Law at King’s College London.
Related Content from Fishman Stewart
"May the 4th Be With You," also known as Star Wars Day, takes place annually on May 4th. The phrase is a pun on the iconic Star Wars catchphrase "May the Force be with you."
Momofuku, founded by celebrity chef David Chang, is well known for its crunchy, peppery, and umami-flavored condiment, CHILI CRUNCH. Momofuku acquired rights in the trademark after a dispute with Chile Colonial over the name and subsequently sought to enforce its rights in CHILI CRUNCH against purported infringers using the same term for competing products.
First, a big “thank you” to all our readers who have given feedback on our newsletter. We appreciate your interest and insights. It is always a treat to hear from you! Second, we wanted to provide you with updates on some of our most popular articles
How will you be celebrating World IP Day on April 26th? Finny will be swimming around the world testing the cleanliness of our waters and visiting his friends under the sea because this year’s topic is “Sustainable Development Goals” (or “SDGs” for short).
Climate change has increasingly dominated daily news cycles, signaling a growing urgency for action. The escalation of temperatures during the hottest months serves as a stark reminder of the immediate need for solutions.
President Donald Trump recently began promoting a brand-new pair of limited edition sneakers for sale bearing a T logo, American flag design, gold upper, and red sole bottom. Surprisingly, the Never Surrender High-Tops bear a striking resemblance to these high-end fashion sneakers manufactured and sold by famous footwear designer Christian Louboutin.
The issue of deepfakes has been making headlines as the US enters another presidential election cycle, due largely to concerns over the potentially deleterious effects of misinformation on voters.
“Palworld”— a computer game created and published by Japanese developer Pocket Pair. Released as an early access game in January 2024, it sold over seven million copies on the computer platform Steam in the first five days and had nearly 20 million players in the first two weeks.
This year’s Super Bowl featured a thrilling overtime victory for the Kansas City Chiefs over the San Francisco 49ers. With estimates as high as 123 million viewers, America's premier sporting event also serves as a grand stage for creativity and intellectual property protections that enhance the game’s success.
Valentine’s Day is just around the corner and jewelry sales are usually around $6 billion USD in the United States alone. In 2021, the US Customs and Border Protection agency seized over $1 billion USD worth of counterfeit pieces of jewelry.
IDENTIFYING, SECURING AND ADVANCING CREATIVITY®