Copyright and AI – Zarya of the Dawn
by Dennis Crouch
In a prior post, I mentioned that the Copyright Office had canceled the registration for “Zarya of the Dawn,” a book purportedly created mainly by AI. That was in error apparently generated by the Office’s new Copyright Public Records System. The attorney for the human author – Kristina Kashtanova – contacted me to point out the error and you can see that the errors have been corrected. The copyright is currently registered.
That said, the Copyright Office has initiated a cancellation process for the work. In a responsive filing, her attorney Van Lindberg walks through her creation and makes the case that all aspects of the book, even computer generated images, are copyrightable.
In addition to the copyrightability of the Work as a whole, each individual picture is itself the result of a creative process that yields a copyrightable work. Kashtanova could extract any single image from the Work and submit it to the Office and correctly assert her authorship of that image.
Unlike the “autonomously generated” picture known as “A Recent Entrance to Paradise,” all the images in the Work were designed by Kashtanova. The visual structure of each image, the selection of the poses and points of view, and the juxtaposition of the various visual elements within each picture were consciously chosen. These creative selections are similar to a photographer’s selection of a subject, a time of day, and the angle and framing of an image. In this aspect, Kashtanova’s process in using the Midjourney tool to create the images in the Work was essentially similar to the artistic process of photographers – and, as detailed below, was more intensive and creative than the effort that goes into many photographs. Even a photographer’s most basic selection process has been found sufficient to make an image copyrightable. The same reasoning and result should apply to the images in Kashtanova’s Work.