Copyright Office rules that prompting Midjourney does not make the prompter the author of the images

2023-02-21Copyright

United States Copyright Office, letter re Zarya of the Dawn (Registration No. VAu001480196) (Feb. 21, 2023), from Robert J. Kasunic, Associate Register of Copyrights and Director of the Office of Registration Policy and Practice, to Van Lindberg, Taylor English Duma LLP

The United States Copyright Office notified counsel for Kristina Kashtanova that it will cancel the registration of the graphic novel Zarya of the Dawn, Registration No. VAu001480196, and reissue it with the same September 15, 2022 effective date, limited to the text and to "the selection, coordination, and arrangement of text created by the author and artwork generated by artificial intelligence," with the new certificate explicitly excluding "artwork generated by artificial intelligence." The Office found that "the images in the Work that were generated by the Midjourney technology are not the product of human authorship." Its reasoning rests on how the tool works: Midjourney starts from "a field of visual noise, like television static," and "does not interpret prompts as specific instructions to create a particular expressive result," so prompts are "closer to suggestions than orders." A user "does not 'actually form' the generated images and is not the 'master mind' behind them." The letter does not dispute that Ms. Kashtanova spent significant time on hundreds of prompts but holds that "that effort does not make her the 'author' of Midjourney images." Her edit to one character's lips was "too minor and imperceptible" to supply creativity; for an aged face on page 12 the Office could not separate the Photoshop contribution from the model's output, while noting that substantive edits to an intermediate image "could provide human authorship."

What it changesThe letter is about authorship, but the Office's test is the one an examiner or a court will reach for when asked whether a human conceived an invention that a model proposed. Prompting is treated as offering a suggestion to a process whose output the prompter does not control, and effort spent prompting does not change that. By the same logic, a disclosure record for a machine-assisted invention that shows only the prompts and the output will not show conception. The record has to show the human acts the Office credits: selecting among outputs for a stated reason, modifying an output in a way that is perceptible and substantive, arranging outputs into a whole, and testing or recognizing that a result solves the problem. Engineering teams using models in design should be told to keep the intermediate outputs and the notes on why one was chosen or changed, because the Office could not credit the page 12 edit when the record did not separate the human work from the model's.