US Copyright Office Backtracks on Registration of Partially AI-Generated Work | Tech Rasta


“This action from the USCO serves as an early warning that anyone filing works that contain any parts generated by artificial intelligence must disclose such parts and be prepared to support their registration and prove human authorship.”

Zarya of the Dawn

On October 28, Kristina Kashnova, an artist and artificial intelligence (AI) consultant and researcher, received a notice from the US Copyright Office (USCO) that she had registered the first issue of her partially AI-generated graphic novel. Zarya of the Dawn, may be cancelled. A month earlier, on September 15, the USCO had issued a registration for Kashnova’s work, which was widely touted as the first example of an AI-generated work successfully registered with the USCO.

In a recent communication from the USCO, “I was asked to provide details of my process to show that there was significant human involvement in the creation process of this graphic novel,” Kashtanova explained via email.

When asked to confirm the potential cancellation of Kashtanova’s registration, the USCO provided a written statement, “[i]t is standard practice for the Copyright Office to decline to comment on certain registration applications.”

USCO added, “Copyright under US law requires human authorship. The Office will not knowingly grant registration to a work that is claimed to have been created solely by a machine with artificial intelligence.

A path from creation to possible dissolution

Kashnova first made a public statement about the notice through her Facebook page. She shared that she has been given 30 days to respond to the USCO and is currently working with Midjourney, an artificial intelligence software that runs as a bot on the social messaging and community app Discord and generates image output based on text input. Text and its legal team. “[The USCO will] Look at my process and decide if there is enough involvement,” she added.

Kashnova documented the process of creating multiple issues of the graphic novel on her Instagram account. She described using Midjourney and shared the prompts she used to create some of the images, while working on the first issue of the graphic novel. Several prompts mentioned American actress Zendaya. Kashnova used Comic Life 3 to compile the graphic novel.

Pursuant to CFR 17 § 201.7, the USCO has the authority to cancel a registration after giving the claimant 30 days to defend their registration. As defined in § 201.7, “Cancellation is an action taken by the Copyright Office whereby a registration is canceled or the registration number is removed on the ground that the registration is invalid under applicable law and regulations, and a new registration is made thereunder. A different class and number.”

An early warning?

This action from the USCO serves as an early warning that anyone filing works that contain any parts generated by artificial intelligence must disclose such parts and be prepared to support their registration and prove human authorship. At this time, it is unclear how much human authorship the USCO seeks for registration applications of this type. Earlier this year, the USCO upheld its refusal to register a work created entirely by machine. Still, the still-unsolved case aside, the line on the creation-generation spectrum on which the USCO makes its decision is blurred.

Novel issues related to copyright continue to arise as technology companies release AI-based tools and features for consumer and business products. Earlier this month, Microsoft announced the integration of OpenAI’s DALLE•2 into Microsoft Deisgner, a new graphic design app in Microsoft 365. According to Microsoft, users can now “instantly create a variety of designs with minimal effort.” GitHub, a subsidiary of Microsoft, is raising copyright issues after launching an AI-assistant for writing computer code. Adobe is similarly blurring the line between machine and creator with more AI-powered tools and features recently announced in its Creative Cloud suite of apps and services. Guidance from the USCO on the use of AI is needed as AI-generated or AI-assisted tasks continue to become mainstream.

Possible solutions

A takeaway for future claimants may be to clarify in the application process the extent to which AI tools were used in the overall creation of the work. In general, claimants must have a restriction statement, which can be a problem with Kashnova registration. The original registration filed with the USCO does not appear to contain any limitations, which means that Kashnova may not have completed the “claim limitation” section as expected by the USCO.

The “Limitation of Claim” section of the application is where any person filing the application lists any materials that are part of the work that cannot be claimed as part of the registration. Filing here may exclude previously published or registered works (such as derivative works or compilations), works in the public domain, or works owned by third parties. Additionally, there is a section of the copyright application where the claimant can describe all of the new material in the work for which they are claiming ownership.

Given Kashtanova’s situation, AI-generated illustrations may be exempt from disclaimer and filing, and new material (story, graphic novel adaptation, and any other copyrighted material) may be disclosed. USCO may make a different determination after reviewing any supplemental materials provided by Kashnova during the 30-day review period.

Midjourney’s terms of service currently state that users own “all assets [they] Create with the Services.” However, there are two exceptions: (1) Assets created for non-paying members are granted a Creative Commons Noncommercial 4.0 Attribution International License (as opposed to an intended ownership statement) and their work must be made publicly available to all other members, and (2) for corporate members. Payment is not subject to a Creative Commons license and additional assurances are given that their use of the Software will be private. If Midjourney is issuing only a Creative Commons license, Midjourney retains ownership of any assets resulting from input or output by users in the non-paying tier.

Additionally, when the Terms of Service use “Beta Model” or “Test” or “Testup” mode (available in August 2022), the assets are managed by the Creative ML OpenRAIL-M license. The terms of that license include a statement that no claims of ownership of any outputs of the model are made.

Applying the USCO rules, if a claimant wants to register a work created in whole or in part by using their Midjourney and they fall under a non-paying member, they must disclose the third party’s ownership of the (Midjourney) claim section for that part of the work. This is a different issue than human authorship, which can also be challenged by the USCO.

Kashnova provided receipts documenting her payment to create the corporate membership tier Zarya of the Dawn.

“The reason I applied [copyright registration],” Kashnova shared, “The comic book was shared on Twitter by a verified user without credit and re-shared multiple times.” A film version of the work is currently in development.

Midjourney could not be reached for comment prior to publication.





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