AI Copyright, a Brief Case Study
Zarya awakens in a post-apocalyptic New York City to find it completely empty. Confused, she makes her way through iconic landmarks — Times Square, Grand Central Terminal, abandoned subway stations — all depicted in epic, high resolution renderings. Zarya meets Raya, a holographic figure introduced as her “inter-world assistant.” From Raya, she learns that an unspecified “mental health crisis” led to the near-complete destruction of human life in the year 2023. After embarking on an intergalactic journey, Zarya eventually reaches calm acceptance of the situation she finds herself in.
This is a rough summary of the plot of Zarya of the Dawn, an 18-page graphic novel written by Kris Kashtanova in 2022. In September of the same year, Kashtanova submitted an application to the United States Copyright Office for the work, and shortly thereafter, copyright was granted and registered.
On the surface, this is a happy, even inspirational story of a creative working hard on a passion project and receiving legal recognition for their work. Upon further inspection, however, factors emerge that complicate the scene.
Anyone familiar with the “look” of Artificial Intelligence artwork can likely glean, from a glance, that AI was involved in the creation of this graphic novel. (Zarya’s uncanny resemblance to the actress Zendaya may be a tip-off, for one.) Indeed, Kashtanova utilized Midjourney — a text-to-image AI — to generate all of the visual elements that make up Zarya of the Dawn. The fact that they relied heavily on Artificial Intelligence in creating this work was omitted from Kashtanova’s initial application for copyright, and only came to the Office’s attention after it had already been registered.
The Office credits Kashtanova’s own statements on social media for alerting them to the use of AI in creating the Work. They made several posts on instagram announcing the registration of their work, highlighting their intention to “make a precedent” for AI art in the United States. Kashtanova wrote in one caption: “I got Copyright from the Copyright Office of the USA on my Ai-generated graphic novel. I was open how it was made [sic].”
This, as it turns out, was categorically untrue. A letter sent to Kashtanova by the US copyright office in October of 2022 asserted the actual language of their application was “cryptic.” The Office points to the fact that out of the eighteen individual files submitted by Kashtanova in their application, the word “Midjourney’’ appeared only once. Kashtanova listed themselves as the author of the work, and made no effort to disclose the fact that any artificial intelligence tool was involved in any capacity. Zarya of the Dawn had been registered for copyright under the false pretense that the work was created solely by Kashtanova.
In light of these facts, the Office concluded that copyright registration should not have been granted, at least not to all aspects of the work. The fact that non-human authorship was involved complicates the registration of copyright, as legal frameworks limit copyright in very specific ways. The Copyright Act of 1976, for instance, establishes that copyright can only be granted to “original works of authorship fixed in any tangible medium of expression.” The phrase “original works of authorship” has been consistently defined by courts as creations of human authors. The US supreme court has further established that copyrightable works must have been independently created in order to receive copyright protection. Due to Zarya of the Dawn’s reliance on AI in generating its images, the Work fails to meet these established standards for copyright protection.
The Office does, however, recognize that the actual text of the work is protected by copyright. The specific words in Zarya of the Dawn were written by Kashtanova alone, without reliance on outside resources or tools such as generative AI. They are thus able to be registered and protected by copyright. The Office also recognizes that the arrangement and selection of the images and text can be protected by copyright. There is no denying that Kashtanova spent significant time meticulously selecting, refining, positioning, and arranging the images in Zarya of the Dawn in order to realize their vision, work which was done solely and independently by the author. Because of this, the work is copyrightable as a “compilation.” However, “the images generated by Midjourney contained within the Work are not original works of authorship protected by copyright.” This partial affirmation of the copyright of Zarya of the Dawn adheres to existing legal precedents regarding copyright law, strengthening the necessity of human authorship in copyrightable works.
Kashtanova argues differently. In a letter to the copyright office after the October decision, their lawyers contend that the Office oversimplified their creative process in their decision-making . They argue that because this specific process of creating images with Midjourney was so closely and carefully guided by Kashtanova, they had a right to copyright. Each image, they state, is the result of a valid creative process in which Kashtanova carefully designed, adjusted, and readjusted prompt inputs. The letter draws an equivalency between Kashtanova’s creative process and that of a photographer, wherein the artist consciously chooses the visual structure of the images they seek to create. The logic goes— while some photographers select the location, subject, time of day, angle, and framing of a photo, Kashtanova does the same with Midjourney. To prove the point of Kashtanova’s creative input and authorship, they quote the exact prompts they wrote into the application in order to output the resulting images:
“sci-fi scene future empty New York,
Zendaya leaving gates of Central Park
and walking towards an empty city,
no people, tall trees,
New York Skyline forest punk,
crepuscular rays, epic scene,
hyper realistic, photo realistic,
overgrowth,
cinematic atmosphere, ethereal lighting.”
These detailed prompts and Kashtanova’s careful process of adjustment, paired with their work in cropping and positioning the images, substantively affirms the full registration of Zarya of the Dawn. AI tools were merely an assisting instrument in this larger creative process, and the authorship ultimately belongs to the human instructing the machine, Kashtanova. What is the difference, they seem to ask, between this AI artist’s use of Midjourney and a painter’s use of a paintbrush?
In the United States Copyright Office’s — and my own — opinion, the difference is vast. By its own description, “Midjourney does not interpret prompts as specific instructions to create a particular expressive result.” The relationship between prompt and output is not precisely cause and effect, making it impossible (or at least extremely difficult) to predict what exactly the AI will create based on a certain prompt. Kashtanova themselves describe a process of trial-and-error as they generated images, necessary because they did not have absolute control over output. The image of Zarya holding a postcard, for instance, took several rounds of adjustment and several prompts to finally arrive to its state in the graphic novel. While Kashtanova first input the prompt “dark skin hands holding an old photograph,” the image Midjourney yielded did not align with their vision. So, they adjusted the wording of their prompt to result in a slightly different image, and on and on until the result they wanted was generated.
When I arrive to my painting class at the SMFA and pick up my paintbrush, I can confidently predict precisely what each brush stroke will look like on my canvas. I choose not only the overall composition and subject of the piece, but also the color, placement, size, and shape of each aspect of the work. This makes me the “author” of the painting I ultimately produce, US copyright law says as much.
If I turn to a friend in the studio and ask them to paint, for instance, a cat, I have no real control over what kind of cat they’ll paint, what style they’ll employ, or what techniques they’ll use. If my vision for the work was a cartoon ragdoll, but they painted a photorealistic tabby, I can absolutely clarify my prompt and ask for a cartoon ragdoll. If my creative vision was for the ragdoll to be lying down, but my friend painted it to be sitting, I can adjust my prompt once more. However, no amount of clarification will make me the sole author of the final work. It seems most logical that the entity which created the work, human or AI, should be the author of the work, not the entity which asked for it to be made. Midjourney is perhaps more akin to my friend in this metaphor than my paintbrush, because it generates images by interpreting written inputs. The AI was not simply a tool that Kashtanova exerted full control over in order to realize their vision of Zarya of the Dawn, thus, Kashtanova cannot appropriately claim copyright.
An obvious counterargument here is that many renowned artists — Warhol, Koons, Hirst — employ others to create either all or a majority of their works. Warhol had his factory, and Hirst is not personally pouring all of that resin. On a legal level, though, when an artist hires fabricators and independent contractors to aid in the creation of work, copyright ownership of the final piece belongs to the employer. There is a financial relationship between the artist and those they hire. No such legal structures exist yet for Artificial Intelligence, thus, authorship is significantly murkier in Kashtanova’s case.
There are vibrant, creative communities of graphic novelists all over the world. There are also vibrant, creative communities using artificial intelligence to create art. Kris Kashtanova’s passion, their emotional investment, and the care they obviously have for their work should never be diminished or doubted. It is clear to me that Zarya of the Dawn is a deeply important work to this artist, the story they have told is one that can resonate with many. The US copyright office affirmed these facts by granting Kashtanova copyright over the text, as well as the selection and arrangement of the Work. However, it stops short at granting copyright of the images themselves. Perhaps the Office is skewing conservative in this decision, perhaps my own opinion illustrates a backward refusal to progress with the times. Perhaps Kashtanova will continue to fight their case and eventually gain registration for the images of the work. The debate will absolutely continue and complicate as AI capabilities evolve and grow. For now, though, the AI-generated images that make up the contents of Zarya of the Dawn are not legally a result of human authorship, and thus cannot be granted copyright.
