“If there is no ability to register a generative work with the USCO, or understanding of the points at which —or circumstance around when— the use of AI tools may qualify, it remains unclear as to where this leaves such works for purposes of ownership, exploitation…and protection.”
UPDATE 1/24 @ 2:15PM
In a response following publication of this article, the USCO confirmed by email to the author that the publication of Kashtanova’s registration as cancelled was seemingly a system error. “The Copyright Office has not issued a decision in this matter, and it remains ongoing,” said the USCO. “The Office’s Official Public Catalog, also known as Voyager, reflects the current status of all copyright public records. [The correct record for Kashtanova’s registration] can be found here.”
Although the USCO notes that the Copyright Public Records System (CPRS) remains in a pilot release, it is unclear why this particular record would have been updated to show as cancelled.
Counsel for Kashtanova confirmed on Twitter the error in the CPRS system, adding “The office is still working on a response. More information to come today.”
On Monday, January 23, the U.S. Copyright Office (USCO) Copyright Public Records System (CPRS) reflected that the registration for a graphic novel that was made using the AI text-to-image tool, Midjourney, had been cancelled. The Office has since clarified that the update was a system error (see above note).
The USCO previously registered the work in September 2022. However, a month later, and following significant press attention, the Office issued a notice indicating that the registration may be cancelled. With Monday’s development, the cancellation seemed to be final.
“I did it for my A.I. community,” the graphic novel’s author, Kristina Kashtanova, explained on Twitter just after midnight EST Tuesday. “We didn’t have clarity and now we do.”
On October 28, 2022, Kashtanova, an artist and AI consultant and researcher, first received notice from the USCO that the registration for the first issue of her partially AI-generated graphic novel, Zarya Of The Dawn, may be canceled. A month earlier, on September 15, the USCO had issued a registration for Kashtanova’s work, which was subsequently widely publicized as the first known instance of an AI-generated work being successfully registered with the USCO.
As part of the September 2022 Notice, the Office asked Kashtanova to provide details “to show that there was substantial human involvement in the process of creation of this graphic novel.”
Van Lindberg, Partner at Taylor English, served as Kashtanova’s counsel in drafting the response to the USCO’s cancellation notice. The response letter argued that there was sufficient creativity in the prompts and inputs used which, when combined with the artist’s use of and control over the tool, should have been sufficient for protection.
Kashtanova hadn’t heard from the Office as of Monday evening since the September Notice, but instead found out about the cancellation notice on CPRS from a friend who was checking the public record.
Despite hoping for an upheld registration, Kashtanova shared “[that] clarity is always better than being in the unknown.”
The potential cancellation by the USCO now opens major questions for companies such as Adobe, which recently started offering stock assets for sale as part of its Adobe Stock offering, and countless other users of tools such as Midjourney and OpenAI’s DALL-E 2. Additionally, it potentially supports the recent counterclaims made by Ryder Ripps and Jeremy Cahen challenging the validity of copyright ownership for thousands of Bored Ape Yacht Club ape NFTs in Yuga Labs, Inc. v. Ryder Ripps, et al., 2:22-cv-04355 (C.D. Cal.).
As previously noted, the use of computer software or algorithms to compile tens of thousands of NFTs remains a gray area of copyright law’s human authorship and creativity requirements. If there is no ability to register a generative work with the USCO, or understanding of the points at which —or circumstance around when— the use of AI tools may qualify, it remains unclear as to where this leaves such works for purposes of ownership, exploitation (such as licensing or assignment), and protection.
UPDATE 1/24 4:40PM:
Here is the Copyright Office’s official statement on the matter:
“The U.S. Copyright Office is aware of public reporting regarding an open copyright registration application. The Office has not issued a decision in this matter, and it remains ongoing.
The Office’s Official Public Catalog, also known as Voyager, reflects the current official status of all copyright public records. The Office is also piloting a new public records system. The piloting of this system is intended to identify problems or improvements in that system. This situation has alerted the Office to an interoperability problem that we are actively working to resolve. If using the new Copyright Public Records System (CPRS) to research the status of specific copyright records, please refer to the system disclaimer, which is on the webpage.”
Kashtanova has confirmed via Twitter that the cancellation notice was a “glitch” and remains hopeful: