While copyright law protects “works of authorship,” what constitutes an “author” has been of much discussion and debate with the emergence and subsequent use of AI platforms. The Copyright Office’s decision regarding the registration for Kris Kashtanova’s work “Zarya of the Dawn” sheds some light on how courts may interpret the level at which AI “authors” a work. Kashtanova used a platform called Midjourney AI to create images used for “Zarya of the Dawn.” Kashtanova argued that because she guided the AI to create the image to her specifications as well as personally modifying the images produced by the AI, she should be granted authorship of the AI-assisted images she used.
AI Authorship?
In a letter addressed to Kashtanova’s counsel on February 21, 2023, the United States Copyright Office affirmed Kashtanova’s authorship “of the Work’s test as well as the selection, coordination, and arrangement of the Work’s written and visual elements.” However, the Office refused to extend authorship rights to the images included in the work that were generated by Midjourney technology, as that work is not the product of human authorship, a necessary prerequisite for copyright protection. As a result, Kashtanova’s original certification which included the Midjourney-generated content was cancelled, and a new certificate was issued to Kashtanova covering only the expressive material she created.
Case Study: What to learn from the Kashtanova case:
This decision and re-certification of Kashtanova’s work emphasized traditional copyright jurisprudence that requires protected works to be the product of a human mind as opposed to AI generation. Specifically, the AI-generated images in Kashtanova’s work evaded copyright protection due to the unpredictable nature of creation that is inherent in AI platforms such as Midjourney. Although Kashtanova only used the AI platform as a starting place to build off from, the U.S. Copyright Office made it clear that Kashtanova’s efforts post original creation did not offer her authorship of such works. The changes on such an image or work would had to have been of a “sufficient amount of original authorship” to qualify for copyright protection. The AI-generated images used by Kashtanova did not rise to such a level. As a result, the new registration for Kashtanova’s work explicitly excluded “artwork generated by artificial intelligence.”
Recent Developments in Copyright Law
In its decision in Thaler v. Perlmutter, decided on March 18, 2025, the U.S. Court of Appeals for the District of Columbia affirmed that copyright may not be extended to works created entirely by AI. Similarly to Kashtanova’s case, Dr. Thaler developed an image using a generative AI system called the “Creativity Machine.” Like in Kashtanova’s case, the Copyright Office denied Thaler’s application to register copyright for the image noting that Creativity Machine could not be cited as an author of the work under the Copyright Act. The Court of Appeals emphasized the Copyright Office’s position that AI cannot be an author, only a tool, under current law.
See Thaler v. Perlmutter, No. 23-5233 (D.C. Cir. Mar. 18, 2025).
Conclusion
The Copyright Office leaves open the possibility of authorship being awarded to natural persons using AI platforms such as Midjourney or the Creativity Machine depending on the substantiality of the edits made after using the AI platforms. However, without more guidance from the Copyright Office, there is no clear path forward on the level of edits that must be applied to an AI-generated image for a person to be deemed the true author of the work. Learn more about how to apply for and register authorship for your creative works.
Contributions to this blog by Isabela Llevat.