Midjourney decision intensifies questions over definition of ‘human authorship’
A recent decision by the US Copyright Office to cancel part of a copyright registration for artwork that was partially generated by an AI programme could have important implications for copyright protection.
On 21 February the US Copyright Office cancelled artist Kristina Kashtanova’s copyright registration, granted last September, for her comic book Zarya of the Dawn due to “inaccurate and incomplete information”. The comic book contained art generated by Midjourney, an AI programme that generates images from text prompts, but Kashtanova did not disclose this fact.
Kashtanova argued that she had authored every aspect of the comic book and that the AI had merely “assisted” her, but the Office concluded that Midjourney ultimately used a different process to generate an image, which was “not the same as that of a human artist, writer or photographer”. Kashtanova may have “guided” the structure and content of each image by making text prompts but it was ultimately Midjourney which originated the “traditional elements of authorship” in the images. This meant the images generated by Midjourney were not “the produce of human authorship”. The Office replaced her original registration with a new, limited registration covering the text of Kashtanova’s comic book, the selection and arrangement of the images and the text – but not the images themselves.
“‘Computer-generated works’ in the UK”
The UK has long recognised ‘computer-generated works’ as attracting some form of copyright protection. Unlike other jurisdictions, the UK protects computer-generated works which do not have a human author under the 1998 Copyright, Designs and Patents Act (CDPA). Instead, the author of such works is the person “by whom the arrangements necessary for the creation of the work are undertaken”. Protection lasts 50 years from the date the work is made, which is shorter than the protection that is afforded to literary, dramatic, musical, and artistic works; sound and music recordings; and films with a human author. Protection for these works lasts for 70 years after the death of their creator.
When first proposed in 1987, Lord Young of Graffham said that the CDPA was “the first copyright legislation anywhere in the world which attempts to deal specifically with the advent of artificial intelligence”. However, generative AI is challenging the traditional definition and concept of computer-generated work, particularly in relation to delineating when human authorship ends and AI authorship begins. Computer-generated work is defined in the CDPA as where “the work is generated by a computer in circumstances such there is no human author of the work”. However, the definition is unclear on what “no human author” actually means, beyond the vague “making arrangements” definition mentioned above.
In the case of generative AI, part of its popularity has been users wanting to input weird and wonderful prompts to see what images the AI produces. It is unclear whether this would constitute human authorship such that the work is taken beyond the scope of the CDPA definition, potentially muddying the waters when deciding which parts of the work are eligible for regular copyright protection as a work created by a human.
“Human Authorship.”
“Courage to Go Deep.”
Some may argue that because the human has no real control over the eventual output and cannot predict what it will look like, their intervention is minimal, and the work is almost completely computer-generated. Others might assert that the AI system is merely a tool for the human to create an original work, in the same way that a paintbrush is a tool for an artist. This is what Kashtanova originally tried to argue: that Midjourney was a tool she used to create her comic book images, but the Office was not convinced.
Some commentators believe that it is impossible for a copyrighted work to be generated without any human authorship. For example, humans will be involved in training AI systems, and those AI systems are trained on materials which were originally produced by human creators. It is still thought that we are a long way off an AI system making the creative decisions or “thinking” for itself. Therefore, clarity on what constitutes adequate human authorship or intervention where AI is partially involved is still sorely needed.