U.S. Copyright Office Allows Registration of Artistic Work that Contains AI-Generated Images – But The Scope of Protection Excludes The Images Themselves

The U.S. Copyright Office (“Copyright Office”) has clarified its position on AI-generated images, concluding that, while such images are not themselves entitled to copyright protection, copyright protection and registration may be available for works of copyrightable authorship that incorporate such AI-generated images and art.

Kris Kashtanova, a comic book artist, used the popular AI art generator, Midjourney AI, to create images for a comic book entitled “Zarya of the Dawn”. Kashtanova took the images produced by Midjourney AI, selected images that fit the comic book theme, and incorporated the images into the book while adding a story in text.

Kashtanova’s registration for Zarya of the Dawn was originally registered by the Copyright Office, but subsequently withdrawn to review for cancellation by the Copyright Office due to the use of AI in creating the images for the comic book. This was because of the Copyright Office’s interpretation of the Copyright Act as granting registrations only to works authored by humans, an interpretation it has applied with respect to other copyright applications seeking to register AI artwork.  For example, the Copyright Office has rejected applications for works such as Steven Thaler’s AI-generated 2-D artwork entitled “A Recent Entrance to Paradise”, as well as to works created by animals, like a monkey taking selfies.

[Cover Page of Zarya of the Dawn (U.S. Copyright Reg. VAu001480196) (U.S. Copyright Office Correspondence, “Re: Zarya of the Dawn (Registration # VAu001480196)”, Feb. 21, 2023, at 2).]

However, on February 21, 2023, the Copyright Office issued a letter notifying Kashtanova that it has decided to grant a registration for Zarya of the Dawn, with the AI-generated art excluded from the scope of the copyright claim. The Copyright Office granted the registration in the original text authored by Kashtanova, as well as to the selection, coordination, and arrangement of the compiled AI images. Notably, the Copyright Office also wrote that “it is possible that other AI offerings that can generate expressive material operate differently than Midjourney does”, leaving open the door for different applications of the human-authorship requirement in the future as applied to different AI offerings.

The Copyright Office explained its position as follows: “We conclude that Ms. Kashtanova is the author of the Work’s text as well as the selection, coordination, and arrangement of the Work’s written and visual elements. That authorship is protected by copyright. However, as discussed below, the images in the Work that were generated by the Midjourney technology are not the product of human authorship. Because the current registration for the Work does not disclaim its Midjourney-generated content, we intend to cancel the original certificate issued to Ms. Kashtanova and issue a new one covering only the expressive material that she created.” Even if the author edited the A.I. images after generation, the Copyright Office still determined this was not sufficient for copyright protection: “[The Copyright Office] cannot definitively conclude that the editing alterations are sufficiently creative to be entitled to copyright.” (U.S. Copyright Office Correspondence, “Re: Zarya of the Dawn (Registration # VAu001480196)”, Feb. 21, 2023 (available at 2023.02.21 Zarya of the Dawn Letter (copyright.gov))).

Overall, this is a significant development as relates to copyright protection and the use of AI-generated images within creative works, clarifying that artists can indeed obtain protection in works that include AI-generated images in certain circumstances. 

We will continue to monitor developments in this area, and update our clients accordingly.