A quickish update. I have said, and still believe, that things created using AI tools are just like anything else with respect to copyright. But recent events remind me that the Copyright Office is made up of people, and people are unpredictable, and US Copyright law is in many places a squashy mess made up of smaller squashy messes, so logic does not always apply.
Here is a currently-relevant set of data points:
- I have registered the copyright on an image I made using MidJourney. I didn’t mention that I used MidJourney (or Chrome, or Windows) on the application form, because there was no place to put that; the form didn’t ask. The application for registration was granted routinely, without any complication.
- I imagine there are hundreds / thousands of similar registrations from other people.
- This person has registered the copyright on a work that they made using MidJourney (I think it was), and the work itself makes it clear that MidJourney was used. The application was afaik granted routinely, without any complication.
- But now it appears that the copyright office has said “oh wait we didn’t notice that MidJourney thing, so we’re cancelling your registration”.
- And the person is appealing, apparently with the help of MidJourney themselves. (Hm, they’ve also apparently deleted some of their tweets on the subject; lawyer’s advice perhaps.)
- This person has applied apparently to register various images made with various workflows involving AI (dalle2 I think) to various extents, clearly stated, and rather than being just accepted or just rejected they’ve received emails from the copyright office asking them for details of what they did, and especially bizarrely suggesting that perhaps at least one of the works might have been “conceived” by the AI.
- Which seems crazy, because the Copyright Office has generally had the opinion that software isn’t creative, and can’t (like) conceive things.
I suspect that things are just rather in disarray at the Copyright Office, and different examiners are doing different things, perhaps having gotten different memos on the subject, or just having their own different opinions about things. It will be interesting to see how the appeal mentioned above goes!
To me, it seems obvious that things created with AI tools should be prima facie registerable with the copyright office, just like photographs presumably are, and if someone wants to challenge based on some legal theory about either lack of creativity or derivative works or whatever, they can do that. The copyright office itself, I would think, would want to stay far away from any situation where they have to somehow evaluate themselves how many units of creativity are in each of the kazillions of applications they get daily.
On the other hand, the Copyright Office could simply issue some sort of guidance saying “We won’t register copyrights on works created with the significant use of an AI tool like dalle or MidJourney, so don’t bother asking” (and could even update the forms to have a question about it).
I think that would be dumb, and lead to court cases eventually that would either overturn that or at least cause a great deal of faffing about that they could have avoided.
But then people and government offices do dumb stuff all the time, so who knows! All is in flux…
And here is an image that I made using Midjourney. No matter what the Copyright Office thinks today. :)
Updates: Things have developed legally and otherwise since this was posted; I recommend the copyright tag on the weblog here for currency.
ceoln 