Artist Challenges Copyright Office Refusal to Register Award-Winning AI-Assisted Work

The Office first tackled the registrability of AI-assisted works in its Kashtanova decision, canceling a previously issued registration of a graphic novel titled Zarya of the Dawn when it learned that the images in the novel were generated using Midjourney, an AI tool that creates images in response to user prompts. Kashtanova detailed to the Office her "creative, iterative process" for generating the images, including "multiple rounds of composition, selection, arrangement, cropping, and editing for each image in the Work." The Office determined, however, that while Kashtanova's textual authorship and selection, coordination, and arrangement of the novel's written and visual elements were eligible for protection, the images themselves were not the product of human authorship and therefore not copyrightable.

In March 2023, the Office issued guidance consistent with its Kashtanova decision, addressing the copyrightability of works containing AI-generated material. While the guidance contemplates that some such works could be copyrightable, it did not provide any examples of what contributions a user of an AI system would need to make to satisfy the human authorship requirement. Rather, the Office broadly stated that it will consider, on a case-by-case basis, "whether the AI contributions are the result of 'mechanical reproduction' or instead the author's 'own original mental conception, to which [the author] gave visible form.'" Where the user merely inputs a prompt, and the AI technology "produces complex written, visual, or musical works in response," the Office considers that the "traditional elements of authorship" are produced by a machine and therefore not the work of a human author.