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Our Take on AI

| 2 minutes read

From Original Photo to AI Art: SURYAST Lacks the Required Human Touch For Copyright Protection

The Review Board of the U.S. Copyright Office (USCO) rejected yet another attempt to register an AI-generated Work on December 11th. The USCO issued a letter denying registration of a two-dimensional computer image titled "SURYAST" created by Ankit Sahni.

Sahni created the Work with three elements: 1) original photography by Sahni, 2) Vincent Van Gogh's The Starry Night, and 3) a software program called RAGHAV. This software program enables a user to apply a style of one image to the style of another image to generate a new third image. Sahni applied to register the Work in December 2021 and listed himself and RAGHAV as the two authors. See the images below sourced from the U.S. Copyright Office letter.

The generated image provided by RAGHAV:

Sahni described how RAGHAV was used in the creation of the work, as well as how the RHAGAV technology operates, in a 17-page document submitted to the USCO. However, the Board ultimately denied registration, affirming its prior decision.

As an initial matter, the Board made a distinction between Sahni's original photograph and the generated Work: "Mr. Sahni’s original photograph is a separate work of authorship because it was fixed separately from the Work." The Review Board determined that the work is not registerable because Sahni "exerted insufficient creative control over RAGHAV's creation of the Work." The Board explained:

"As Mr. Sahni admits, he provided three inputs to RAGHAV: a base image, a style image, and a 'variable value determining the amount of style transfer.' Sahni AI Description at 11. Because Mr. Sahni only provided these three inputs to RAHGAV, the RAGHAV app, not Mr. Sahni, was responsible for determining how to interpolate the base and style images in accordance with the style transfer value ... Mr. Sahni did not control where [the Works] elements would be placed, whether they would appear in the output, and what colors would be applied to them—RAGHAV did." (Office Letter p. 7)

Accordingly, the Board determined that the derivative work authorship was not the result of a human. Therefore, the Work was not registerable.

An important takeaway for creative professionals is that while an original work used as a prompting mechanism for an AI system may be protectable, the subsequent digital manipulation conducted by the AI system to generate a new work is not a protectable derivative.  

For further reading, check out this great analysis of the decision below.

[I]s it fair for the Office to filter out that photograph in considering the author’s contributions to the final work? Does that analysis unfairly focus the lens of traditional media on new, AI media?