© Reuters. A sketch drawn by Kris Kashtanova (L) that the artist fed into the AI program Stable Diffusion and transformed into the resulting image (R) using text queries. Courtesy of Kris Kashtanova/Handout via REUTERS
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By Tom Hals and Blake Brittain
(Reuters) – Last year, Kris Kashtanova typed instructions for a graphic novel into a new artificial intelligence program and sparked a debate over who created the artwork: a human or an algorithm.
“Zendaya leaves the gates of Central Park,” Kashtanova entered into Midjourney, a ChatGPT-like AI program that creates great illustrations from written prompts. “The future of the sci-fi scene in empty New York…”
From that input and hundreds of others came “Zarya of the Dawn,” an 18-page story about a character reminiscent of actress Zendaya wandering through an abandoned Manhattan hundreds of years in the future. Kashtanova was awarded the copyright in September and posted on social media that it meant artists were entitled to legal protection for their AI art projects.
It didn’t take long. In February, the US Copyright Office suddenly reversed course, and Kashtanova became the first person in the country to have legal protection for AI art revoked. The images in “Zarya”, the office said, “are not the product of human authorship”. The office allowed Kashtanov to retain the copyright to the arrangement and the story.
Now, with the help of a powerful legal team, the artist is once again testing the limits of the law. For the new book, Kashtanova turned to a different AI program, Stable Diffusion, which allows users to scan their own drawings and refine them with text instructions. The artist believes that starting with original artwork will provide enough of a “human” element to sway the authorities.
“It would be very strange if it wasn’t copyrighted,” said the 37-year-old author of the latest work, an autobiographical comic.
A spokesman for the copyright office declined to comment. Midjourney also declined to comment, and Stability AI did not respond to requests for comment.
BREAKING THE RECORD
At a time when new AI programs like ChatGPT, Midjourney, and Stable Diffusion seem poised to transform human expression while breaking user growth records, the legal system still hasn’t figured out who owns the results — the users, the program owners, or maybe just nobody.
Billions of dollars could depend on the answer, legal experts say.
If users and owners of new AI systems could obtain copyrights, they could reap huge benefits, said Ryan Merkley, former head of Creative Commons, the US organization that issues licenses to allow creators to share their work.
For example, companies could use AI to produce and own the rights to vast amounts of low-cost graphics, music, video and text for advertising, branding and entertainment. “Copyright governing bodies will be under enormous pressure to allow the assignment of copyright to computer-generated works,” Merkley said.
In the US and many other countries, anyone who engages in creative expression usually has immediate legal rights to do so. Copyright registration creates a public record of the work and allows the owner to go to court to enforce their rights.
Courts, including the US Supreme Court, have long held that the author must be a human being. In denying legal protection to the “Zarya” images, the US Copyright Office cited decisions denying legal protection to a selfie taken by a curious monkey named Naruto and to a song the copyright applicant said he composed ” The Holy Spirit”.
One American computer scientist, Stephen Thaler of Missouri, argued that his AI programs are sentient and should be legally recognized as the creators of the works of art and inventions they create. He sued the US Copyright Office, filed a claim with the US Supreme Court and is pursuing a patent case before the UK Supreme Court.
Meanwhile, many artists and companies that own creative content are fiercely opposed to giving copyright to AI owners or users. They claim that because the new algorithms work by being trained on vast amounts of material on the open web, some of which is copyrighted, the AI systems are ingesting legally protected material without permission.
Photo vendor Getty Images, a group of visual artists and the owner of the computer code have separately filed lawsuits against the owners of AI programs including Midjourney, Stability AI and ChatGPT developer OpenAI for copyright infringement, which the companies deny. Getty and OpenAI declined to comment.
Sarah Andersen, one of the artists, said that copyrighting AI works would “legitimize theft”.
‘HARD QUESTIONS’
Kashtan is being represented pro bono by Morrison Foerster and her veteran copyright attorney Joe Gratz, who is also defending OpenAI in a proposed class action brought on behalf of owners of copyrighted computer code. The firm took on Kashtan’s case after an associate at the firm, Heather Whitney, spotted a LinkedIn post by the artist seeking legal help with a new filing after the copyright on “Zarya” was denied.
“These are difficult questions with significant consequences for all of us,” Gratz said.
The copyright office said it reviewed Kashtan’s “Zarya” decision after it discovered the artist had posted on Instagram that the images were created using artificial intelligence, which was not clear in the original September application. On March 16, it issued public guidelines directing applicants to clearly disclose whether their works were created with the help of artificial intelligence.
The guidelines say that the most popular artificial intelligence systems are unlikely to create a copyrightable work, and “what matters is the extent to which a human had creative control.”
‘COMPLETELY DEFLATED’
Kashtan, who identifies as non-binary and uses “they/them” pronouns, discovered Midjourney in August after the pandemic largely halted their work as photographers at yoga gatherings and extreme sports events.
“I was completely blown away,” said the artist. Now, as AI technology develops at lightning speed, Kashtanova has turned to newer tools that allow users to input original work and give more specific commands to control the output.
To test how well human control will satisfy the copyright office, Kashtanova plans to file a series of copyright applications for individual images selected from the new autobiographical comic, each created with a different AI program, setting or method.
The artist, who now works at a start-up that uses artificial intelligence to turn children’s drawings into comics, created the first such painting a few weeks ago, titled “Rose Enigma.”
Sitting at a computer in their one-bedroom apartment in Manhattan, Kashtanova demonstrated her latest technique: They pulled up a simple pen-and-paper sketch on the screen, which they scanned into Stable Diffusion, and began refining it by tweaking settings and using text queries like “young cyborg woman.” and “flowers coming out of her head”.
The result was an unearthly image, the lower half of a woman’s face with long-stemmed roses replacing the top of her head. On March 21, Kashtanova submitted it for copyright protection.
The painting will also appear in Kashtanov’s new book. The title is: “For my AI community.”