US COPYRIGHT OFFICE CANCELS REGISTRATION OF MIDJOURNEY-GENERATED WORK
A few days ago, in a much-commented decision, the US Copyright Office cancelled the registration that it had initially granted to Zarya of the Dawn, a comic book created by Kristina Kashtanova with the help of the image-generating AI Midjourney.
Ms Kashtanova had initially applied for copyright protection for her comic book, protection which was granted by the US Copyright Office. However, after realising that the images of the comic book were generated by using the AI Midjourney (something which was not clearly stated in the application filed by the author), the US Copyright Office decided to reconsider, and re-assessed the copyrightability of the work in light of this new information.
In a letter sent to Ms Kashtanova’s lawyers, the US Copyright Office concluded that as per their new assessment, Ms Kashtanova could be considered as the author “of the Work’s text as well as the selection, coordination and arrangement of the Work’s written and visual elements”. However, stating that the images generated by the AI Midjourney “are not the product of human authorship”, the Office refused to register them and thus to grant copyright ownership to Ms Kashtanova.
In particular, while the author’s lawyers argued that her own creativity was expressed in the way in which she drafted the prompts and further tweaked them to guide the creative process (i.e. that it was her creative choices that led to the outputs), the Office considered that it was Midjourney – not the author – which clearly “originated the traditional elements of authorship in the images”. The author’s claims and the Office’s reasoned assessment can all be found in the correspondence published by the Office.
Consequently, the Copyright Office cancelled the original certificate issued to the author and granting copyright protection to the comic book as a whole. It will issue instead a new copyright certificate covering only the materials created directly by the author (text, arrangements – but not the pictures).
While the author and her lawyer are currently looking into ways to challenge the US Copyright Office’s assessment, the Office’s decision remains for the time being one of the very first ones relating to the existence of copyright over AI-generated works, and it can be an interesting preview of the debates which will soon occur in the EU on this topic.
LORD OF THE RINGS vs LORD OF THE BINS
UK media reported last month a story which could make one smile, but bears heavy consequences for the SME involved.
In essence, a waste collection firm based in Brighton operated under the name “Lord of the Bins”, until they recently received a cease-and-desist letter from Middle-earth Enterprises, the company holding the rights to the Hobbit and Lord of the Rings franchises and the related trade marks.
Clearly not amused by the funny name chosen by the small business, Middle-earth Enterprises ordered via their lawyers that the company change its name, claiming that it was infringing their trade marks. The same request was made in relation to the company’s slogan, “One ring to remove it all”, which the company was ordered to stop using.
The owners of the small business told the British press that they would do as ordered, as they could not afford to fight the entertainment giant in court.
This story serves as a reminder that basing one’s business slogans or names on existing registered trade marks (even in a funny or parodic way) can sometimes lead to unfortunate and costly consequences – even in cases like this one where there is no risk of confusion between the SME and the Middle Earth giant. On the one hand, renowned trade marks usually benefit from a larger scope of protection, allowing their owners to enforce them widely (including in cases of free-riding and in cases where the contested sign could be considered as detrimental to the reputation of the renowned mark). On the other hand, even if the dispute does not go to court (as in this case, where we will probably never know what a court would have ruled), such legal threats can generate substantial expenses in legal counsel and in rebranding – which can end up especially heavy for small businesses.
- Publication date
- 8 March 2023