Manually Change the Images a bit!
You might have heard of the comic book Zarya of the Dawn. Kristina Kashtanova wrote this comic book. She arranged the images in it. She used Midjourney to generate the images. The Copyright Office granted copyright protection to the text and to the way Kashtanova arranged the images. But it denied copyright protection to the AI-generated images themselves because a human being didn’t make them.
The Copyright Laws & AI-Generated Images
Copyright law says works that a “person” creates are copyrightable. The courts have backed up this rule, and the Copyright Office has followed it. The Copyright Office gives these examples of works that you can’t copyright because a human didn’t create them:
- A photograph taken by a monkey.
- A mural painted by an elephant.
- A claim based on the appearance of actual animal skin.
- A claim based on driftwood that has been shaped and smoothed by the ocean.
- A claim based on cut marks, defects, and other qualities found in natural stone.
- An application for a song naming the Holy Spirit as the author of the work.
The Copyright Office previously refused to grant copyright protection for a work called A Recent Entrance to Paradise because it “was autonomously created by a computer algorithm running on a machine.” In other words, there was no human creativity involved. The author of the work took it to court, but the courts agreed with the Copyright Office. The United States Supreme Court declined to hear the case just last month. (In most cases, the Supreme Court gets to pick and choose which cases it wants to review.).
But the amount of human creativity that the law requires is not very much. One court held that only “some element of human creativity must have occurred” to obtain a copyright. The Copyright Office itself states, “Only a modicum of creativity is necessary.” In legalese, the United States Supreme Court has said that “only . . . more than a de minimus quantum of creativity” is required for a copyright. (The law is peppered with Latin. In English, de minimus means “lacking significance or importance : so minor as to merit disregard.” In other words, only a teeny, tiny bit of creativity.)
Not Enough Creativity
Kashtanova tried to show enough creativity for a couple of the images in the book to qualify for copyright protection. In one of them, Kashtanova used Photoshop to change an old woman’s photo, but the Copyright Office couldn’t tell which changes Kashtanova and which changes were due to Photoshop. In another image, Kashtanova did make changes to the mouth and upper lip of an image of Zara:
The Copyright Office said these changes were “too minor and imperceptible to to supply the necessary creativity for copyright protection.” Frankly, I can’t see a change at all, but then I’m not an artist.
The Copyright Office Shows the Way
By turning down Kashtanova’s copyright application for the images, the Copyright Office showed us the way forward. All you have to do your AI-generated images is manually change them enough to see the difference from the originals. Then, you can cite the Copyright Office’s Zarya of the Dawn decision to demonstrate that your image is deserving of copyright protection. Voila!