Appendix C: Zarya of the Dawn (2022)¶

C.1. Points analyzed by the Copyright Office¶

The U.S. Copyright Office examined the following key points to reach its decision:

Evaluation of text authorship: recognition of copyright on the text as it was written entirely by Kashtanova without the help of any AI.

Evaluation of the compilation of the work: recognition of copyright on the selection and arrangement of images and text as the selection and arrangement are the fruit of Kashtanova's creativity.

Analysis of the creative process of individual images: denial of copyright on individual images generated by Midjourney. The Copyright Office held that it was Midjourney, not Kashtanova, that determined the expressive elements of the images.

Evaluation of manual modifications to images: denial of copyright on minor modifications made by Kashtanova. Reason: the modifications were too minimal to reach the threshold of creativity required.

Consideration of the use of AI tools in the creative process: recognition that the use of AI raises new questions. Reaffirmation of the requirement of human authorship. Copyright law requires human creative contribution.

Final decision: cancellation of the original registration. Issuance of a new limited registration. Reason: copyright law protects only the elements of human authorship of the work.

C.2. Analysis of actions taken by Kris Kashtanova¶

The Copyright Office analyzed the following actions of Kashtanova in the creative process:

Creation of textual prompts for Midjourney: considered as instructions for the AI, not direct creative expression. The AI freely interprets these prompts, therefore there is no direct control over the final result.

Selection of images generated by Midjourney: considered insufficient to establish authorship. The fundamental creative expression comes from the AI, not from Kashtanova.

Iteration and refinement of prompts: despite the iterative process, the AI remains the primary source of visual expression. Prompt refinement was seen as guidance, not direct creation.

Minor modifications to images using Photoshop: judged too minimal to reach the threshold of creativity necessary for copyright protection.

Arrangement and composition of images in the work: recognized as worthy of copyright, but only as a compilation, not for individual images.

Choice of technical parameters for image generation: considered technical inputs, not sufficient creative expression to establish authorship.

Combination of elements from different Midjourney iterations: even though this process requires creative choices, the office held that the fundamental expression still came from the AI, not from Kashtanova.

Description of the creative process and artistic intention: demonstrates Kashtanova's conceptual input, but not considered sufficient to establish authorship on AI-generated images.

Cropping and framing of final images: recognized as part of the compilation protected by copyright, but not sufficient to establish authorship on individual images.

C.3. Additional considerations¶

The Copyright Office emphasized that the lack of predictable and direct control over the final result of AI-generated images is a crucial factor in denying copyright for individual images.

The decision highlights the distinction between using AI as an assistive tool and as the primary creator of content.

The case stimulated a broader debate on the need to update copyright laws to address the challenges posed by generative AI technologies.

This detailed analysis of Kashtanova's actions and the Copyright Office's considerations offers an in-depth view of the legal and creative complexities involved in creating works with the assistance of generative AI.