Spring 2023 AI Listening Sessions
United States Copyright Office
United States Copyright Office
Morrison Foerster associate Heather Whitney spoke on behalf of Kristina Kashtanova at the Copyright Office’s listening session on generative AI and visual arts on Tuesday, May 2. MoFo represents Kashtanova in connection with their application to register works Kashtanova created using generative AI tools. Learn more about our representation of Kashtanova.
Heather emphasized that all visual art should receive the same treatment by the Copyright Office, but that visual art created with the assistance of generative AI tools currently faces a much higher bar (this being especially clear when the Office’s treatment of Kashtanova’s comic book, Zarya of the Dawn, is compared to its treatment of photographs). For instance, while the Copyright Office took the position that Kashtanova could not be the author of the visual art they created using Midjourney because Kashtanova could not adequately predict what the output would look like ahead of time, the Copyright Office regularly registers photos where photographers have no idea what their photos will look like (for instance, wildlife photographers who register photos taken by cameras set up on motion sensors that go off when the photographer is not present).
Heather also encouraged those in attendance to become more familiar with the technology available to AI artists—especially ControlNet models—which gives those artists much greater control over the creation of images and permits them to make choices comparable to those courts have held sufficient to allow photographers to register their works (e.g., choices around composition, lighting, and angle).
Heather ended by explaining that the Office’s recently released guidance articulates different tests for authorship that lead to conflicting outcomes.
Other attendees included artists and representatives from Adobe, Getty Images, Jasper AI, Stability AI, and the National Press Photographers Association.
Read more about the Copyright Office’s listening sessions.
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