This article appeared in The Intellectual Property Strategist, an ALM/Law Journal Newsletters publication that provides a practical source of both business and litigation tactics in the fast-changing area of intellectual property law, including litigating IP rights, patent damages, venue and infringement issues, inter partes review, trademarks on social media – and more.

The United States Copyright Office recently issued a letter ruling on the copyrightability of Kristina Kashtanova's comic book-like work, Zarya of the Dawn. See the side-by-side comparison below.

Kashtanova wrote the text of the work but used the Midjourney artificial intelligence (AI) technology to generate the work's constituent images. Midjourney, like other "generative" AI technologies for creating images, was preliminarily trained to generate its output images by analyzing an existing corpus of visual works. To generate images using the tool, users feed Midjourney a textual prompt representing desired concepts or qualities of the output image (e.g., "snow mountain wolf growling, face view, snow fog mist, hyper-realistic") and may also provide a URL of an image and/or parameters defining desired aspect ratio or other properties. Midjourney generates four images based upon the user-supplied prompt, any one of which the user can then iterate upon further with new prompts. The final output images evolve from initial "noise" values that are based on a randomly generated seed, so the generative process is by default non-deterministic. However, the process can be made deterministic if the user explicitly specifies the seed value. Kashtanova created each of the images in the comic book through an iterative process of first supplying prompts to Midjourney that described the desired content of the output image, then selecting one of the four images output by Midjourney, and then revising her prior prompt to refine the image in the next iteration, until eventually arriving at a finished image.