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Tamara Pester, Esq. Tamara S. Pester, LLC generated by Midjourney. 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. 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 § 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. 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. 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.