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I spent some time reading the decision (…). Here are four takeaways...

🚨Big news for AI artists Copyright Office affirms registration of AI-created comic book. A bit surprised at this outcome since works must be created by a human to be registered. I suppose they were convinced that inputs into the AI model was sufficient. Curious how this will impact the Thaler litigation (…)—my guess is not much since in that case the plaintiff admitted (I think) 0 human input.
1⃣ Copyright Office agrees that the text in the comic book (dialogue, etc.) is copyrightable bc it was written entirely by @Kris Kashtanova w/o use of AI.
2⃣ Copyright Office agrees that the selection and arrangement of the images and text is copyrightable bc it's considered a "compilation." Compilations can be copyrightable even if the works they compile are individually not copyrightable.
Because Kashtanova "selected, refined, cropped, positioned, framed, and arranged" the images, that's good enough for a compilation since it has sufficient creativity and was done by a human author.
3⃣ Individual images are NOT copyrightable. This is the most important part. The Copyright Office's reason is that using Midjourney means that "the process is not controlled by the user because it is not possible to predict what Midjourney will create ahead of time."
Midjourney is not like other tools that artists may use (Photoshop, cameras, etc.) because with those tools, the artist can predict what the output will be and has control over it. Not so with AI models.
"Because of the significant distance between what a user may direct Midjourney to create and the visual material Midjourney actually produces, Midjourney users lack sufficient control over generated images to be treated as the 'master mind' behind them."
Using Midjourney, according to the USCO, is closer to hiring someone to create an image with general directions, or to searching Google for a specific image. In neither case is the person the author of the resulting images.
4⃣ Images created by Midjourney and edited by a human MIGHT be copyrightable, but the two specific images discussed are not. The first one's edits were "too minor and imperceptible" to be sufficiently creative, and Kashtanova didn't give enough evidence of edits for the other.
Michael Eshaghian, Esq.
IP counseling and patent/TM prosecution, ex-@kirkland_ellis. Crypto/web3 enthusiast. Racquetball and board game design in my free time.
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