Tamara S. Pester, LLC
grammar, sentence structure, or words like humans.”[1] It is the Office’s understanding that, because Midjourney does not treat text prompts as direct instructions, users may need to attempt hundreds of iterations before landing upon an image they find satisfactory. This appears to be the case for Mr. Allen, who experimented with over 600 prompts before he “select[ed] and crop[ped] out one ‘acceptable’ panel out of four potential images … (after hundreds were previously generated).” Allen Sept. Creation Explanation. As the Office described in its March guidance, “when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the ‘traditional elements of authorship’ are determined and executed by the technology—not the human user.” AI Registration Guidance, 88 Fed. Reg. at 16,192. And because the authorship in the Midjourney Image is more than de minimis, Mr. Allen must exclude it from his claim. See id. at 16,193. Because Mr. Allen has refused to limit his claim to exclude its non-human authorship elements, the Office cannot register the Work as submitted.
The Board finds that Mr. Allen’s remaining arguments regarding elements of authorship in the Work are unpersuasive. First, he argues that the Office’s position “ignores the essential element of human creativity required to create a work using the Midjourney program,” and that his creative choices in operating Midjourney make him the author of resulting output. Second Request at 1, 4 (citing SHL Imaging Inc. v. Artisan House, Inc., 117 F. Supp. 2d 301, 308 (S.D.N.Y. 2000) (holding human authorship requires that “an author must imbue the work with a visible form that results from creative choices”)). The Board acknowledges that the process of prompting can involve creativity—after all, “some prompts may be sufficiently creative to be protected by copyright” as literary works. AI Registration Guidance, 88 Fed. Reg. at 16,192 n.27. But that does not mean that providing text prompts to Midjourney “actually form[s]” the generated images. See Sarony, 111 U.S. at 61; see also Thaler, 2023 WL 5333236, at *3 (the “key” to copyright protection is “[h]uman involvement in, and ultimate creative control over, the work at issue”). Instead, Mr. Allen is closer to the plaintiff in Kelley v. Chicago Park District who sought to claim copyright in a “living garden.” 635 F.3d 290 (7th Cir. 2011). In that case, the court rejected the authorship claim because, as is true here, the plaintiff’s actions did not amount to creative control of the claimed elements of the work.[2] As the Seventh Circuit further explained, while “copyright’s prerequisites of authorship and fixation are broadly defined, … the law must have some limits.” Id. at 304.
Second, the Board rejects Mr. Allen’s policy argument that denying copyright protection to AI-generated material leaves a “void of ownership troubling to creators.” Second Request at 9. The Constitution and the Copyright Act define the works that are entitled to copyright
- ↑ U.S. Copyright Office, Cancellation Decision re: Zarya of the Dawn (VAu001480196) at 1 (Feb. 21, 2023), https://www.copyright.gov/docs/zarya-of-the-dawn.pdf (quoting Midjourney, Prompts, https://docs.midjourney.com/docs/prompts).
- ↑ In the case of gardens, “a garden owes most of its form and appearance to natural forces, though the gardener who plants and tends it obviously assists,” such as by “determin[ing] the initial arrangement of the plants in a garden.” Kelley, 635 F.3d at 304. And in the case of images generated by Midjourney, most of the form of the image will be determined by outside forces such as Midjourney’s training data and the initial “noise” that serves as a starting point for the diffusion process that generates a final image. See Midjourney, Prompts, https://docs.midjourney.com/docs/prompts (explaining that prompts are converted to tokens that are then “compared to [Midjourney’s] training data”) (last visited Sept. 5, 2023); Midjourney, Seeds, https://docs.midjourney.com/docs/seeds (explaining that Midjourney creates “a field of visual noise, like television static, as a starting point to generate the initial image grids”) (last visited Sept. 5, 2023).
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