The US Copyright Office takes a position!

On art made with AI tools, that is. Reuters story here, actual letter from the Office lawyer here.

I haven’t read the whole letter in detail yet (it’s long!) but I’ve looked it over and have Initial Thoughts:

• I don’t think there’s a fact-of-the-matter here, about what is copyrightable when. There are legal theories that make more and less sense, that are more and less consistent with other established theories, and so on. But these are not theories that try to model something in the real world, like the Theory of Relativity; they are more theories in the sense of Set Theory. So the Office can’t really be right or wrong here overall, but they can have made a more or less sensible decision.
• The overall finding of the memo is that Kristina Kashtanova still has a copyright on Zarya of the Dawn, but only on the text, and “the selection, coordination, and arrangement of the Work’s written and visual elements”, not on the visual elements themselves (i.e. the images made with Midjourney), because those images don’t involve “sufficient creative input or intervention from a human author.”
• This seems wrong to me; as other places in the document point out, the case law says that “only a modicum of creativity is necessary”, and there is certainly a modicum of creativity in prompt design and engine usage.
• The argument here seems to be, not that there isn’t enough creativity in the prompts and flags and so on, but that the connection between the artist’s input and the image output isn’t strong enough. The memo says things like ‘Rather than a tool that Ms. Kashtanova controlled and guided to reach her desired image, Midjourney generates images in an unpredictable way. Accordingly, Midjourney users are not the “authors” for copyright purposes of the images the technology generates.’
  • But where is the existing doctrine that says anything about predictability? Jackson Pollock might like a word, and the creator of any other roughly uncontrolled or algorithmic or found-object work. The theory here seems to be that Midjourney prompts are just suggestions or ideas, and those can’t be copyrighted. Does that mean that since Pollock just had the idea of splashing paint onto canvas, and the unpredictable physics of the paint cans and the air produced the actual work, that “Autumn Rhythm” can’t be copyrighted? Or are they going to hold that there is a legal significance to the fact that the detailed movements of his arm muscles were involved? That seems dicey.
  • For the Office to claim that the prompts and other input did contain at least a modicum of creativity (which seems undeniable) but that that input wasn’t strongly enough connected to the output, seems to be inventing a new legal test, which it’s not at all clear to me that the Office can do on its own hook, can it?
  • This memo may be specifically designed to be contested, so that the question can go to a court that can do that kind of thing.
• The memo may have interesting consequences for Thaler, in particular the cases in which Thaler attempted to claim copyright under work-for-hire theory, with his software as the creator. The memo explicitly makes the comparison with human work-for-hire, saying that if someone had given the same instructions to a human artist that are contained in a Midjourney prompt, and the human artist had made an image, then the person giving the instructions would not have been the creator unless work-for-hire applies (the human carrying out the instructions would have been the creator-in-fact), and that therefore they aren’t in the Midjourney case either.
  • To be consistent with both the memo and Thaler, the theory seems like it has to be that Midjourney is the creator-in-fact, and therefore the human isn’t (and can’t get a direct copyright as the creator), but also that software can’t be hired in the work-for-hire sense and therefore the human can’t get the copyright that way either. Which seems odd! It seems to acknowledge that the software is the creator-in-fact, but then deny both making the software the creator-in-law (because not human) and making the user the creator-in-law via work-for-hire (because I’m-not-sure).
• Some other countries are different and imho somewhat more sensible about this, as in the UK’s Copyright, Designs, and Patents Act, of which Section 178 explicitly talks about “computer-generated” works, meaning “that the work is generated by computer in circumstances such that there is no human author of the work”. That’s still imho a little sketchy (I continue to think that Kashtanova is in fact the human author of the images in Zarya), but at least it then provides that “In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.”
  • There’s still some room for doubt there, as for instance whether it’s Kashtanova or the Midjourney people or some combination who relevantly undertook the arrangements, but at least we aren’t in the position of saying that the author is a being that is not legally allowed to either be a creator, or confer creatorship to a human via work-for-hire.
• In the case of the many, many currently-registered copyrights on images made with AI tools (including mine), it seems that if the copyright office is notified, or notices, that fact, they are likely to cancel / withdraw the registration. The theory will be that the registration materials were incorrect when they named the creator as the author of the work, without in any way informing the Copyright Office that an AI tool was used. I could, for instance, send the Copyright Office a note saying “oh by the way I hear that you want to know when AI tools are used, and in my case Midjourney was”, and then they might cancel my registration on their (imho mistaken) theory that I’m not really the author.
  • Since I believe their theory is mistaken, I’m not currently planning to do that. :)
  • If they discover it on their own hook and send me a letter telling me they’re withdrawing the registration, I will do whatever easy thing one can do to contest that, but I’m not going to like hire a lawyer or anything; life’s too short.
  • I’m very curious to see what others do; I would expect that Midjourney itself (assuming it’s big enough to have lawyers) will have their lawyers working on a response to this memo.
  • My copyrights on the Klara trilogy and Ice Dreams (casually announced here) are secure, as to the text and the image selection and arrangement and all, just not to the images per se. Which is fine. And I haven’t registered those anyway. :)
• I should go back and add a note to all of my existing copyright weblog entries, pointing at this one; or, more sustainably, pointing at the entire “copyright” tag on the weblog here. Then I won’t have to keep updating it.
• I’m quite happy I decided not to worry too much about this whole thing, and just make pretty pictures (see pretty picture of concerned purple aliens above).

Updates: as this is a developing topic (as opposed to my usual topics which are Timeless Truths of the Universe), you may want to check the copyright tag on the weblog here for later updates, if this post is more than a week or month old.