In 2020, Kris Kashtanova used an artificial intelligence program called Midjourney to create a graphic novel. Kashtanova typed in the prompt “Zendaya leaving gates of Central Park,” and the AI program produced “Zarya of the Dawn,” an 18-page story featuring a character similar to actress Zendaya in a futuristic New York City.
Kashtanova received a copyright for the work, which he declared on social media was a sign of legal protection for AI art projects. However, in February, the U.S. Copyright Office reversed its decision, stating that the artwork was “not the product of human authorship,” although Kashtanova was allowed to keep a copyright in the arrangement and storyline.
Now, with the assistance of a legal team, Kashtanova is testing the boundaries of copyright law once again by using a different AI program called Stable Diffusion, which allows users to refine their original artwork with text prompts. The artist is confident that starting with original artwork will give the work a “human” element and make it eligible for copyright protection. The copyright office declined to comment, and neither Midjourney nor Stability AI provided a statement.
SMASHING RECORDS
As artificial intelligence (AI) programs like ChatGPT, Midjourney and Stable Diffusion gain popularity, the legal system is still grappling with the question of who owns the output created by these programs. Legal experts believe that billions of dollars could hinge on the answer. If users and owners of the new AI systems can obtain copyrights, they would reap significant benefits, said Ryan Merkley, former chief of Creative Commons, a U.S. organization that issues licenses to allow creators to share their work.
For instance, companies could use AI to produce and own the rights to vast quantities of low-cost graphics, music, video and text for advertising, branding and entertainment. “Copyright governing bodies are going to be under enormous pressure to permit copyrights to be awarded to computer-generated works,” Merkley said.
However, courts, including the U.S. Supreme Court, have long held that an author must be a human being. The U.S. Copyright Office cited rulings denying legal protection for a selfie taken by a monkey named Naruto and for a song that the copyright applicant claimed had been composed by “the Holy Spirit” when it denied legal protection for the “Zarya” images created by an AI program.
Stephen Thaler, a U.S. computer scientist, has argued that his AI programs are sentient and should be legally recognized as the creators of artwork and inventions that they generated. He has sued the U.S. Copyright Office, petitioned the U.S. Supreme Court, and has a patent case before the U.K. Supreme Court.
On the other hand, many artists and companies that own creative content are opposed to granting copyrights to AI owners or users. They argue that since the new algorithms work by training themselves on vast quantities of material on the open web, some of which is copyrighted, the AI systems are gobbling up legally protected material without permission.
Stock photo provider Getty Images, a group of visual artists, and owners of computer code have separately filed lawsuits against owners of AI programs including Midjourney, Stability AI, and ChatGPT developer OpenAI for copyright infringement, which the companies deny. Getty and OpenAI declined to comment. Sarah Andersen, one of the artists, said granting copyrights to AI works “would legitimize theft.”
‘HARD QUESTIONS’
Kris Kashtanova has sparked a debate over who owns the artwork created by artificial intelligence (AI) after typing instructions for a graphic novel into Midjourney, an AI program similar to ChatGPT. The AI program produced an 18-page story called “Zarya of the Dawn,” which Kashtanova received a copyright for in September 2022.
However, in February 2023, the US Copyright Office reversed the decision, stating that the images in “Zarya” were not the product of human authorship. Kashtanova has now turned to a different AI program, Stable Diffusion, which allows users to scan in their own drawings and refine them with text prompts. Kashtanova believes that starting with original artwork will provide enough of a human element to sway the authorities.
The legal system has yet to determine who owns the output of AI programs like ChatGPT, Midjourney and Stable Diffusion. If owners and users of these new AI systems could get copyrights, they would stand to reap huge benefits. Companies could use AI to produce and own the rights to vast quantities of low-cost graphics, music, video and text for advertising, branding and entertainment.
However, some artists and companies that own creative content fiercely oppose granting copyrights to AI owners or users, arguing that the AI systems are gobbling up legally protected material without permission. Kashtanova is being represented for free by Morrison Foerster and its veteran copyright lawyer Joe Gratz, who is also defending OpenAI in a proposed class action brought on behalf of owners of copyrighted computer code.
The Copyright Office recently issued public guidance instructing applicants to clearly disclose if their work was created with the help of AI, stating that the most popular AI systems likely do not create copyrightable work, and what matters is the extent to which the human had creative control.
