The increasing popularity of artificial intelligence has entered the consumer creative market, as seen through the lens of AI-generated music and art. On September 15, the copyright office granted Kris Kashtanova a copyright for the AI-generated graphic novel Zarya of the Dawn. In an announcement posted on Instagram, Kris Kashtanova of New York claims to have created the novel with the use of AI, setting a potential precedent for ownership attribution and use of AI in front of the Copyright Office. However, as analyzed by Gizmodo, the copyright application does not directly reference AI.
"I tried to make a case that we do own copyright when we make something using AI. I registered it as visual arts work. My certificate is in the mail and I got the number and a confirmation today that it was approved." - Kris Kashtanova, Instagram
A closer look at the Copyright Act of 1976 highlights that copyright protection applies to “original works of authorship fixed in any tangible medium of expression,” but neither “author” nor “authorship” is defined by statute. The language of the Copyright Act of 1976 was left broad so that the statute did not bar future works enabled by technology from copyright protection. Would this mean that works created by artificial intelligence (AI) are copyrightable?
Zarya of the Dawn is just one of many AI-assisted works seen at the Copyright Office, and sits in contrast to other AI-works recently rejected by them. In February of this year, the Copyright Review Board denied the registration of a copyright claim where an AI generator was listed as the author. A three-person board reviewed a 2019 ruling against Dr. Steven Thaler, who attempted to copyright a picture titled A Recent Entrance to Paradise on behalf of an AI algorithm. The board concluded that Thaler’s AI-created image failed to include an element of “human authorship” — a necessary standard for protection, reiterating that “the Office will refuse to register a claim if it determines that a human being did not create the work.” Dr. Thaler’s attempt to copyright AI work was only a precursor to the growing medium of AI-generated art.
In another recent example of notable artwork generated by AI, the Colorado State Fair’s annual art competition awarded the blue ribbon for digital art to an AI generated submission by Jason M. Allen. Mr. Allen’s art submission, “Théâtre D’opéra Spatial,” was generated with an artificial intelligence program that turns text into detailed graphics, and is one of the first A.I.-generated pieces to win such a prize – sparking backlash in the art and online communities, raising similar questions surrounding the legitimacy and societal acceptance of AI-assisted artwork. The New York Times provides commentary.
As AI-assisted art becomes more integrated in the art community, the protection – or non-protection – of such art will shape the future of the artistic field, leaving us to wonder: what was the difference between Kashtanova and Dr. Thaler’s copyright claim? A review of the facts between the two applications highlights that:
- Kashtanova did not attempt to claim the copyright on behalf of an AI algorithm;
- Kashtanova did not reference or describe the AI in the copyright application;
- Kashtanova wrote the comic book story, created the layout, and made artistic choices to piece the images together.
Kashtanova’s application seems to have overcome the Copyright Office’s test for “human authorship” due to their involvement in the creation process. The Copyright Office will be faced with more difficult questions surrounding the gray area of human involvement as the level of sophistication in AI art shifts and human artists become less involved in AI-assisted artwork.