Page:Théâtre D’opéra Spatial (USCO Review Board, 2023).pdf/5

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Tamara Pester, Esq.
Tamara S. Pester, LLC

September 5, 2023

generated by Midjourney.^[1] In its final decision reissuing the registration certificate with exclusions, the Office explained its understanding of how the Midjourney service functions and the relevant analysis under copyright law.^[2] In examining the Work here, the Board applies its knowledge of Midjourney and Midjourney’s description of its own service, of which the Office takes administrative notice. See Compendium (Third) § 1704.2 (“[T]he Board … may take administrative notice of matters of general knowledge or matters known to the Office or the Review Board.”).

B. Analysis

Because the Work here contains AI-generated material, the Board starts with an analysis of the circumstances of the Work’s creation, including Mr. Allen’s use of an AI tool. According to Mr. Allen, the Work was created by 1) initially generating an image using Midjourney (the “Midjourney Image”), 2) using Adobe Photoshop to “beautify and adjust various cosmetic details/flaws/artifacts, etc.” in the Midjourney Image, and 3) upscaling the image using Gigapixel AI. After considering the application, the deposit, and Mr. Allen’s correspondence, the Board concludes that the Work contains an amount of AI-generated material that is more than de minimis and thus must be disclaimed.^[3] Specifically, the Board concludes that the Midjourney Image, which remains in substantial form in the final Work, is not the product of human authorship. In reaching this conclusion, the Board does not decide whether Mr. Allen’s adjustments made in Adobe Photoshop would be copyrightable on their own because the Board lacks sufficient information to make that determination.^[4] The Board also does not consider Mr. Allen’s use of Gigapixel AI because he concedes that Gigapixel AI “doesn’t introduce new, original elements into the image” and that “the enlargement process undertaken by Gigapixel AI does not equate to authorship.” Second Request at 5–6.

↑ See Letter from U.S. Copyright Office to Kris Kashtanova at 14 (Oct. 28, 2022), https://www.copyright.gov/docs/zarya-of-the-dawn.pdf.
↑ U.S. Copyright Office, Cancellation Decision re: Zarya of the Dawn (VAu001480196) at 6–8 (Feb. 21, 2023), https://copyright.gov/docs/zarya-of-the-dawn.pdf.
↑ The Board notes that there may be cases in the future where the application of the de minimis standard is a closer call. Here, however, the significance of the AI-generated material to the final work is apparent.
↑ Mr. Allen used Photoshop to erase “[u]ndesired visual elements” from the image generated by Midjourney, such as “a crack on the floor next to the central subjects’ feet, a deformed looking tower structure in the landscape’s background, a dark scar in the cityscape, and a dark blemish in the sky of the background.” Allen Oct. Creation Explanation. He then “used Photoshop to paint in those [deleted] areas with content aware tools,” before using other Photoshop features such as brush tools, and blur and sharpening tools. Id. According to Adobe, Photoshop’s content fill feature fills empty spaces in with little or no input from a user, which suggests a lack of human authorship of filled material. See Meredith Alexander Kunz, Leveraging Deep Learning to Fix Images, Adobe Research (Feb. 8, 2018), https://research.adobe.com/news/leveraging-deep-learning-to-fix-images/ (explaining that an older version of content fill “pick[ed] patches in the surrounding area to copy in” and a newer version employs machine learning techniques “to actually create new content for an image”). And the Board would need more information to know whether Mr. Allen’s use of Photoshop rose to the level of copyrightability. See Compendium (Third) § 909.3(A) (“Typical technical alterations that do not warrant registration include … repairing faded print and visual content; and sharpening and balancing colors, tint, tone, and the like.”). Were Mr. Allen willing to disclaim AI-generated material in the Work, he would be able to file a new application and explain why his modifications to the image rise to the level of copyrightable authorship.

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[1] See Letter from U.S. Copyright Office to Kris Kashtanova at 14 (Oct. 28, 2022), https://www.copyright.gov/docs/zarya-of-the-dawn.pdf.

[2] U.S. Copyright Office, Cancellation Decision re: Zarya of the Dawn (VAu001480196) at 6–8 (Feb. 21, 2023), https://copyright.gov/docs/zarya-of-the-dawn.pdf.

[3] The Board notes that there may be cases in the future where the application of the de minimis standard is a closer call. Here, however, the significance of the AI-generated material to the final work is apparent.

[4] Mr. Allen used Photoshop to erase “[u]ndesired visual elements” from the image generated by Midjourney, such as “a crack on the floor next to the central subjects’ feet, a deformed looking tower structure in the landscape’s background, a dark scar in the cityscape, and a dark blemish in the sky of the background.” Allen Oct. Creation Explanation. He then “used Photoshop to paint in those [deleted] areas with content aware tools,” before using other Photoshop features such as brush tools, and blur and sharpening tools. Id. According to Adobe, Photoshop’s content fill feature fills empty spaces in with little or no input from a user, which suggests a lack of human authorship of filled material. See Meredith Alexander Kunz, Leveraging Deep Learning to Fix Images, Adobe Research (Feb. 8, 2018), https://research.adobe.com/news/leveraging-deep-learning-to-fix-images/ (explaining that an older version of content fill “pick[ed] patches in the surrounding area to copy in” and a newer version employs machine learning techniques “to actually create new content for an image”). And the Board would need more information to know whether Mr. Allen’s use of Photoshop rose to the level of copyrightability. See Compendium (Third) § 909.3(A) (“Typical technical alterations that do not warrant registration include … repairing faded print and visual content; and sharpening and balancing colors, tint, tone, and the like.”). Were Mr. Allen willing to disclaim AI-generated material in the Work, he would be able to file a new application and explain why his modifications to the image rise to the level of copyrightable authorship.

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