Three Years Later, The Copyright Office Is Still Wrong (And Now Founders Are Paying For It)
In 2024, I wrote that the Copyright Office's position on AI-generated works was flawed and would not survive contact with the actual Burrow-Giles test. Three years later, the Office has hardened that position into formal policy, the D.C. Circuit has blessed it, and the Supreme Court has refused to look at it. The reasoning is still wrong for the same reasons. What's new is who's paying for it: the AI-native founders building real businesses on tools the Office now tells them they can't own the output of — and a constitutional bargain that's being broken on both ends.
The Misguided Stance of the Copyright Office on AI-Generated Works
The U.S. Copyright Office has taken the position that AI image generating tools, like MidJourney, (not the user using the tool) are the authors of the images that are created. The best example we have is the case of Kristina Kashtanova’s graphic novel, Zarya of the Dawn, which was partially generated using AI. The Copyright Office’s reasoning is flawed, and the issue of who the author is when using AI tools needs careful examination.