Copyright Office Goes After Registration Issued to AI-created Graphic Novel

The U.S. Copyright Office instituted an inquiry into a registration relating to a graphic novel that uses AI-generated artwork. Scott Hervey and Josh Escovedo  talk about this case on this episode of The Briefing by the IP Law Blog. Watch this episode on the Weintraub YouTube channel here.   Show Notes: Scott: Kristina Kashtanova is the author of the graphic novel, Zarya of the Dawn. Ms. Kashtanova had previously applied for and obtained a copyright registration for the graphic novel. Sometime after the novel was registered, the Copyright office, on its own accord, instituted an inquiry into registration with a specific focus on the artwork in the novel which was generated through the use of Midjourney AI technology. After the inquiry, the Copyright office revised the registration and excluded from protection the images created by the use of the AI technology. We are going to talk about this on the next installment of the Briefing by the IP law blog Scott: Here is the brief history of the matter. In September, 2022 Kashtanova submitted a copyright application for her graphic novel.  Her application did not disclose that she used an AI application to create any part of the novel nor did she disclaim any portion of the work. After the application was registered, apparently the Copyright office became aware of statements made by Kashtanova in social media that she had created the graphic novel using Midjourney’s AI tool. Josh: Don’t you find it a bit odd that the Copyright office was watching or reviewing Kashtanova’s social media. The examiner must have had some belief that AI was somehow involved in the creation of the graphic novel. Scott: I never thought that the registration process at the copyright office was that in depth. I always thought it was more pro-forma, but it seems I was mistaken. In any event, based on this new information, the Copyright office determined that the original application was incorrect or substantively incorrect. The office then notified Kashtanova that it intended to cancel the registration unless she provided additional information in writing showing why the registration should not be canceled. Josh: As we have previously covered, the basis for the Copyright office’s refusal to register AI generate work comes from how the Copyright Act defines the scope of copyright protection.  Under the Act, a work may be registered if it qualifies as an “original work[] of authorship fixed in any tangible medium of expression. Courts interpreting the phrase “works of authorship” have uniformly limited it to the creations of human authors. Scott: According to the internal Copyright Offices practices, as codified in Rule 503.03, In order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Josh: In responding to the Copyright office, Kashtanova’s lawyers argued that both the novel’s text and the selection and arrangement of the text and images are copyrightable since the text was written solely by Kashtanova and the text and images were arranged solely by Kashtanova. The copyright office accepted these arguments and held the text to be copyrightable as well as the arrangement of the text and images. With regard to the images, Kashtanova’s counsel argued that she used the AI platform as a creative tool, similar to how a photographer may use Adobe Photoshop. Scott: The decision rendered by the Copyright office goes into great detail about how...