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Taylor English Partner Van Lindberg at Forefront of Debate Over Copyright Ownership of Works Created with Use of AI Technology

Van Lindberg, a San Antonio, Texas Partner at Taylor English Duma LLP, has made headlines in his groundbreaking quest to advocate for full copyright ownership by his client Kristina Kashtanova for a work partially created through an artificial intelligence (AI) platform called Midjourney.

On February 21, 2023, the U.S. Copyright Office issued a decision bestowing copyright ownership upon Kashtanova, but only as to the text and organization of images in Kashtanova's 18-page work titled Zarya of the Dawn ("the Work"), not as to any of the individual images themselves. A copy of that decision, as well as of Mr. Lindberg's preceding (Nov. 2022) letter to the Copyright Office, can be obtained via a link in Mr. Lindberg's linked IPWatchdog article.

The Copyright Office described Midjourney as a "subscription service that allows users to pay to generate images, with subscription plans corresponding to the computational time it takes to generate images." The Office described its functionality as "randomly" generating images in response to a user's typewritten prompts. However, Mr. Lindberg had taken issue with that characterization, explaining that Midjourney "takes creative, human-authored prompts and inputs and renders them in another form," and that "[a]ll of the images used in the Work are simply alternative representations of the creative input provided to the Midjourney service by the author."

Based on its understanding of Midjourney, the Copyright Office denied Kashtanova authorship over the individual images in the Work, finding that Midjourney authored those images instead of Kashtanova. But since it did bestow authorship upon Kashtanova as to the text and arrangement of images in the Work, Kashtanova stated: “This is a great day for everyone that is creating using Midjourney and other tools,” and “[w]hen you put your images into a book like Zarya [of the Dawn], the arrangement is copyrightable. The story is copyrightable as well, as long as it’s not purely AI produced. That covers a lot of uses for the people in the AI art community.” 

However, to the extent that the Copyright Office denied full copyright authorship to Kashtanova, Mr. Lindberg viewed the decision as a "setback." In the linked IPWatchdog article, he discusses: "Taken in the context of the other AI-driven cases the Office is fielding, this is a surprising result. In the USCO’s recent filing in the Stephen Thaler case, the Office said that it was 'preparing registration guidance for works generated by using AI.'" 

A Bloomberg Law article about the decision adds: "Although the Copyright Office’s decision left room to interpret things differently for other AI generators in the future, some attorneys said artists looking to register AI-assisted works now may be disappointed." The article concludes: "Kashtanova’s attorneys plan to respond to the office’s decision," but quoted Thaler's attorney's view that "any attempt to contest the decision will be a slow process."

As noted in his profile appearing at the end of Mr. Lindberg's linked article, Mr. Lindberg was named one of “America’s Top 12 Techiest Attorneys” by the American Bar Association Journal and was recognized as one of the world’s top IP strategists by Intellectual Asset Management magazine.

In one sense this is a success, as the Office was previously threatening to revoke the copyright altogether. But the Office limited the registration and specifically excluded the individual images created by Kashtanova from the copyrighted material. This is a setback for all the artists that would like to use artificial intelligence (AI) tools as part of their creative process.


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