*This writing is a blog post. It is not a published IPTF Journal article.
Josephine Meier
In 2018, artist Sean Aaberg suffered a debilitating stroke, severely affecting the left side of his body.[1] Prior to his stoke, Aaberg was a boardgame designer who found success drawing colorful, vivid images and spinning classic “fantasy tropes” into something more engaging and modern for players.[2] After his stroke, Aaberg found a way to continue his craft by turning to artificial intelligence software Midjourney for assistance in rendering the drawings he was no longer capable of making independently.[3] The Midjourney program allows users to generate images based on words or groups of words users give the program.[4] The use of artificial intelligence (AI) like Midjourney permits artists with disabilities to “reclaim their artistry,” and opens a new world to those who have been unable to creatively express themselves due to a disability.[5]
While the technological advances in image generating programs have allowed artistry to flourish in new communities, the promise of true inclusivity for disabled digital artists was quashed in early 2023 by the United States Copyright Office (USCO).[6] In the fall of 2022, Kristina Kashtanova submitted her graphic novel, “Zarya Of The Dawn,” to the USCO for copyright registration.[7] Like Aaberg, Kashtanova used Midjourney to generate images for the novel.[8] The USCO initially granted the registration, but subsequently backtracked after an investigation into the level of input Kashtanova had over the produced images.[9] The Office reissued a limited registration for the novel’s text, image selection and arrangement, but declined to allow copyright for the images themselves.[10] In revoking Kashnatova’s full copyright for “Zarya of The Dawn,” the USCO made clear that AI-assisted art is currently ineligible for full copyright protection.[11] This is a blanket decision by the USCO for all AI-generated images; there are no exceptions at this time.[12]
The USCO’s decision to deny copyright protection to AI-generated images without exception exemplifies the harsh all-or-nothing nature of current AI law.[13] Historically, copyright law has been accepting of both technological advances and cultural changes, and has adapted accordingly.[14] For example, the 1996 Chafee Amendment allowed a circumvention of exclusive copyrights for persons with disabilities to access otherwise protected material for educational purposes, and in 2020 expanded electronic submission acceptances in place of physical submissions in response to the limitations of the COVID-19 pandemic.[15]
The USCO’s refusal to grant protection to AI-generated images prevents artists with disabilities from obtaining true ownership of their work, thereby disincentiving artists from entering the marketplace—the USCO sees the AI as the artist behind the work, not the person.[16] Additionally, the wide scope of the USCO’s decision is not only misaligned with the realities of AI use and the digital era, but also forecloses an opportunity for artists with disabilities to use the tools available to them to not only create art, but earn the same credit for their work as artists who are able to use pencil and paper.[17] The USCO’s decision has a negative impact on copyright law as a whole by limiting new contributions to the field, and unfairly bars an entire class of people from the professional art community.[18] The Office should consider amending their decision to allow people with disabilities to register their work when the AI is being used as an assistive technology to create, especially when it is a disabled artist’s only option.[19] While people without disabilities might have other means of expressing creativity, for those like Sean Aaberg, using AI is the best way to create something similar to the art he had previously been capable of creating by hand.[20] For those who spend a lifetime disabled, AI could be their only option to break into the art community.[21]
While it is true that there is much uncertainty about the effects of AI technologies, the uncertainty seems, in the opinion of the USCO, to outweigh identifiable, positive impacts of the programs.[22] The USCO needs to be receptive to the nuance of how AI is used in art, and consider the impact that broad bans have on the people, like artists with disabilities, who would otherwise benefit from more relaxed rulings.[23] A deeper dive by the USCO into the assistive nature of AI technologies would allow more informed decision-making when issuing impactful decisions, and official guidance on the topic might incentivize artists with disabilities to contribute to the art world if they knew their works would be taken seriously and protected.[24] Even if the USCO is not ready to issue an exception to their ruling, an acknowledgment of the benefits of using AI-generated image programs for artists with disabilities would go a long way in bringing the uncertain AI-copyright landscape in line with the overarching copyright goal: to reward those who create.[25]
[1] See Dale J. Rappaneau, Art-generating AI as an accessibility tool for disabled artists, The Techtualist (Jan. 25, 2023), https://techtualist.substack.com/p/art-generating-ai-as-an-accessibility (discussing the positive impact of artificial intelligence being used as an assistive technology for artists with disabilities).
[2] See id (stating the specifics of Aaberg’s artistic contributions to the gaming community).
[3] See id (denoting the limitations of physical impairments on traditional artistic expression and the freedom artificial intelligence offers artists, specifically Aaberg) .
[4] Kevin Roose, An A.I.-Generated Picture Won an Art Prize. Artists Aren’t Happy, N.Y TIMES, Sept. 2, 2022, at B1, https://www.nytimes.com/2022/09/02/technology/ai-artificial-intelligence-artists.html.
[5] See Rappaneau, supra note 1 and accompanying text (describing benefits of artificial intelligence for people with disabilities); Karistina Lafae, Gatekeeping in the Art World and AI Tools as Accessibility, Medium (Dec. 24, 2022), https://karistinalafae.medium.com/gatekeeping-in-the-art-world-and-ai-tools-as-accessibility-24867ebf98c2 (outlining accessible tools for people with disabilities and the various artistic credits people with disabilities have been given when using assistive technologies).
[6] See Rappaneau, supra note 1 (analogizing the use of artificial intelligence to traditional assistive technologies); Lafae, supra note 5 (identifying the relationship between artificial intelligence and proper artistic credit); Tiffany Hu, AI-Generated Comic Art Not Protected, Copyright Office Says, Law360 (Feb. 23, 2023), https://www.law360.com/articles/1579038, (discussing USCO’s rejection of artificial intelligence generate images).
[7] See Nathaniel Bach, Jessica Wood, Sandra Bignone, The Road Ahead For AI-Generated Works And Copyright, Law360 (Apr. 10, 2023), https://www.law360.com/articles/1594758/the-road-ahead-for-ai-generated-works-and-copyright (considering the implications of the USCO’s strict decision in the Kashtanova case rejecting artificial intelligence generated images for copyright protection).
[8] See id (providing how Kashtanova illustrated her graphic novel).
[9] See id (detailing the uncertainty of current artificial intelligence law and the USCO’s indecision in how to address art created by artificial intelligence).
[10] See Adam Lidgett, Copyright Office Offers New View On AI-Assisted Art, Law360 (Mar. 15, 2023) https://www.law360.com/articles/1586363/copyright-office-offers-new-view-on-ai-assisted-art- (outlining the limited right artists currently have after the USCO ruling).
[11] See id (examining the limitations and stance of the USCO’s on artificial intelligence generated art).
[12] See id (stating the lack of exceptions in current copyright law for artificial intelligence users seeking to copyright their work).
[13] See Lidgett, supra note 10 (describing the USCO’s ruling on artificial intelligence generated art and stagnant nature of current law).
[14] See 17 U.S.C. §§ 101-1511 (stating copyright law generally); 17 U.S.C. §§ 121 (containing the statutory text for the Chaffee Amendment allowing infringement on otherwise stringent copyrights); Technical Amendments Regarding Electronic Submissions to the Copyright Office, United States Copyright Office, (April 8, 2020), https://www.copyright.gov/rulemaking/coronavirus-electronic-submissions/ (showing the USCO’s more relaxed, adaptable requirements in response to COVID-19).
[15] See id (stating specific copyright law changes based on social progress and current events)
[16]See Chris Hayes, How AI could increase art world accessibility for disabled artists, Dazed (Sept. 20, 2018), https://www.dazeddigital.com/art-photography/article/41334/1/how-ai-could-increase-art-world-accessibility-for-disabled-artists (discussing artificial intelligence advancements and the increased accessibility they offer to people with disabilities); Tiffany Hu, AI-Generated Comic Art Not Protected, Copyright Office Says, Law360 (Feb. 23, 2023), https://www.law360.com/articles/1579038, (considering USCO’s rejection of artificial intelligence generated images).
[17] See Rappaneau, supra note 1 and accompanying text (describing benefits of artificial intelligence for people with disabilities); Karistina Lafae, Gatekeeping in the Art World and AI Tools as Accessibility, Medium (Dec. 24, 2022), https://karistinalafae.medium.com/gatekeeping-in-the-art-world-and-ai-tools-as-accessibility-24867ebf98c2 (listing accessible tools for people with disabilities and the various artistic credits people with disabilities have been given when using assistive technologies).
[18] See Hayes, supra note 16 (discussing the difficulties artists with disabilities face even when using assistive technology).
[19] See Lidgett supra note 10 (stating the USCO’s no-exception stance on artificial intelligence generated art).
[20] See Rappaneau, supra note 1 (illustrating how artist Sean Aaberg creates art).
[21] See id. (explaining how artists with disabilities use artificial intelligence to create art).
[22] See id.(raising the positive impact of artificial intelligence that is being used as an assistive technology for artists with disabilities); Bach, supra note 7 (discussing the USCO’s rejection of Kashtanova’s graphic novel).
[23] See id. (considering how broad decisions regarding AI ignore important considerations such as positive impacts of inclusive regulation).
[24] See USCO, supra note 14 (stating various copyright law updates); Leonard D. DuBoff, Michael D. Murray, Christy A. King & James A.R. Natzinger, Art Law Deskbook: Vol. 1 Artists’ Rights in Intellectual Property, Moral Rights, and Freedom of Expression, Part 1 Copyright Basics, § 1.07 What does copyright prevent? (Matthew Bender & Company, Inc. eds., 3rd ed. 2022).
[25] See id (providing justifications for copyright law and reasons for exclusive rights); Bach supra note 7 (explaining the USCO’s ruling on Kashtanova ‘s graphic novel, specifically rejecting artificial intelligence generated images for copyright protection).