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Artificial intelligence (AI) is becoming a hot topic in the world of intellectual property. The increasing popularity of cutting-edge AI programs like Midjourney, Stable Diffusion, and ChatGPT, is transforming human expression. And AI art is being created with these unique tools.

In September 2021, Kris Kashtanova received a copyright for their AI art project, an 18-page story called "Zarya of the Dawn." She developed her work using an AI program called Midjourney. 

Then in February 2022, the U.S. Copyright Office suddenly reversed itself and stripped Kashtanova of legal protection for her AI art. With the help of a high-powered legal team, Kashtanova is now testing the limits of the law once again.

 They are turning to a different AI program, Stable Diffusion, which lets users scan their own drawings into the program and refine them with text prompts.

Billions of dollars are at stake with AI art

The legal system has not yet figured out who owns the output of AI art. It is an open question whether the users, the owners of the programs, or maybe no one at all should hold the rights.

The answer could determine who makes billions of dollars. And whether the users and owners of new AI systems own copyrights to reap huge benefits. For example, companies could use AI to produce and own the rights to vast quantities of low-cost graphics, music, video, and text for advertising, branding, and entertainment.

In the U.S. and many other countries, anyone who engages in creative expression usually has immediate legal rights to it. However, courts including the U.S. Supreme Court have long held that an author has to be a human being.

 In rejecting legal protection for the "Zarya" images, the U.S. Copyright Office cited rulings denying legal protection for a selfie snapped by a curious monkey named Naruto and for a song that the copyright applicant said had been composed by "the Holy Spirit."

Many artists and companies that own creative content fiercely oppose granting copyrights to AI owners or users. They argue that the new algorithms work by training themselves on vast quantities of material on the open web. And some of that training material is copyrighted.

The point is that AI systems are already gobbling up legally protected material without permission.

Zarya Collaboration goes to court

Kris Kashtanova is being represented pro bono by veteran copyright lawyer Joe Gratz and the firm of Morrison Foerster. Gratz is also defending OpenAI in a proposed class action. And he is working on behalf of owners of copyrighted computer code. 

The attorneys took on Kashtanova's case after an associate at the firm, Heather Whitney, spotted a LinkedIn post by the artist seeking legal help. And their new client was concerned with a new application after the "Zarya" copyright was rejected.

The Copyright Office said it reviewed Kashtanova's "Zarya" decision after discovering the artist had posted on Instagram that the images were created using AI. 

Apparently, the AI and artist collaboration was not made clear in the original September application. And it may not even have been requested when she filed her application.

 On March 16, 2022 “public guidance” was issued instructing applicants to clearly disclose if their work was created with the help of AI.

These are hard questions with significant consequences for all of us, said Gratz. The guidance claims the most popular AI systems likely do not create copyrightable work. And "what matters is the extent to which the human had creative control."

However, some AI programs allow users to provide their own drawings as input, which Kashtanova is now testing with Stable Diffusion.