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Colour Crusader: Meet the artist liberating colour for everyone

Stepping into Stuart Semple’s world is like entering a Willy Wonka-esque fantasyland. Only instead of chocolate and candy, everywhere you look there are bags of bright powdered paint pigments, colour-mixing machines, paint-spattered canvases, sculptures, brushes and of course, brightly coloured bottles of paint.

The man himself bustles around with a giddy sort of energy, clad in furry animal slippers, with long hair and perpetually paint-stained fingers, a visual reminder of his love affair with colour.

“I would explain colour as something that can change our emotions and our state and way of being as we interact with that. And it is a way, really, of feeling the world inside us visually.”

To see him, you’d never think Semple is anything other than a creative type. You certainly wouldn’t peg him as a political crusader. But when someone threatens what he sees as a universal right to artistic self-expression, a different picture emerges.

Sitting in his studio on England’s south coast, Semple is looking at a popup message on his computer screen, brow furrowed.

“Some Pantone colours may no longer be available due to changes in Pantone’s licensing with Adobe.”

In November, creators saw a similar message pop up in their Adobe software, meaning colours they’d previously been able to access were no longer available. Adobe is the industry standard for digital artists all over the world, and Pantone supplies many of the digital colour palettes.

Semple immediately saw red.

“I couldn’t believe it,” he says. “I think they’re (Pantone) just trying to milk the creators that use their tools for more money.”

Pantone’s palettes are the international language of colour. The company’s colour coding system is nearly universally used to match shades and allow printers to accurately reproduce computerized artwork across the globe. But all of a sudden, many of the colours artists rely on were jailed behind an additional paywall.

“I think that there’s a difference between being a business and being commercially minded and paying your staff and keeping the lights on, to actually just seeing how much you can squeeze out of people, and it feels like that’s what they’re doing.”

Semple’s reverence for colour and art goes back to his childhood. He grew up in a modest, working-class family. A high achiever in school, he was destined for a high-paying career as a doctor or lawyer. But a trip to the National Gallery in London when he was eight years old lit a creative fire.

“I came in contact with Van Gogh’s Sunflowers and it made a huge impact on my whole life and it sort of burned into my head,” he says.

“And my mum said I was in a state of almost awe, like I was shaking in front of this thing.”

The young Semple got home and immediately started creating. He couldn’t afford professional paints, so he made them himself with household materials.

“We didn’t have art materials. I mean, that was a luxury. So I started, like most kids do, going into the kitchen and mixing food colouring with, you know, beetroot and cooking oil and making these colours and slapping them on things.”

Today, Semple is a successful artist, and he hasn’t lost his passion for producing pigment. He still makes his own shades of paint. Mixing up an extremely bright shade of pink — he calls it the Pinkest Pink — the childlike wonder is still there.

“Aww! There’s something so satisfying about it,” he giggles, dumping in the powdered paint pigment and watching it swirl around the mixer.

He knows the science, obsessing over details to make his paints pop.

“By using resins that can hold a lot of ingredients, you can put a lot more ingredients in, which means you can actually put more pigment in,” he says. “And it’s all to do with the shape of the pigment because a spherical shape will reflect light in a very direct angle from one small bit of surface area, whereas a flatter pigment will do the opposite.”

But there’s something much larger at play here. What makes Semple’s studio truly special is the philosophy behind the operation. Art is an expensive endeavour, often only open to the wealthy. Semple’s own experience is one factor that drives him to help make art affordable to both patrons and creators. He makes high-quality paints he sells at reasonable prices.

“So it’s more than, how do I make money? It’s actually more, how do I make art accessible and give people, you know, the chance to interact with it?”

That’s just one part of the operation. Semple employs 20 people, all of whom are artists. He gives them free access to materials, studio space, tools and mentorship to support them to create their own works of art. Semple also founded the “Giant” art gallery in his hometown of Bournemouth, which offers free admission, and the online VOMA gallery (Virtual Online Museum of Art). Just as he believes art should be for everyone, he says that the colours all around us should be free to enjoy and inspire creativity.

That’s what made him so mad about Adobe and Pantone restricting access to colours that had been free for years.

“We all consume colour all day long, so we’re all invested in it,” Semple says. “So it actually does really, really matter. And as these corporations get big and become mega-corporations, the idea that we have a culture that is being dominated by the richest and most powerful and they can actually control the colours that we see is outrageous.”

Across the Atlantic ocean in Toronto, graphic artist Daryl Woods got the same message Adobe users everywhere were seeing: if he wanted access to the same range of Pantone colours he’d had for years, he’d have to pay extra, over and above the $80 per month he already pays for his Adobe software subscription.

“I think this is pretty much a cash grab by Pantone. This is something that’s been available for probably a couple of decades at least,” Woods says.

Woods has a graphic design business, creating art for advertisements and for packaging on brands, like wine labels. And he says most digital artists rely on Adobe software and Pantone’s colour palettes.

“I can’t do my work without the Adobe products. They are just part of my everyday life. And I think that pretty much goes for anybody who works in visual communication.”

Semple decided to do something about the new fee. In just a few hours, he created a software plug-in for Adobe that had colour palettes that he describes as “indistinguishable” from Pantone’s. He calls his “Sempletones.”

“One of the things that people don’t know is that I learned how to program a computer when I was eight,” he says casually. “So coding and computers are a huge part of my life. And yeah, I can do things like that.”

So why did he do it?

“I hate the idea that art or colour or materials are sort of gate-kept, in any way, shape or form,” Semple says. “I really think it’s important that people have that permission to kind of do their thing with the stuff they need to do it.”

Woods was impressed Semple was able to come up with a workaround so quickly. “I was very surprised at how easy it was to work with how complete it was. It’s no different than when I used Pantone colours.”

Global News reached out to Adobe and Pantone for comment. Adobe responded that it was Pantone’s decision to charge an additional fee to access its complete range of colours, and that “the Adobe team continues to find ways to lessen the impact on our customers.”

Pantone did not directly address the question of who was responsible for pulling some of its colour palettes, but the company is now selling a separate plug-in with the missing colours directly on its website at a cost of $19.99 per month or $119.99 per year.

For Semple, the Adobe-Pantone affair was just the latest battle in a long-running colour crusade.

In 2016, he got into a very public feud with Anish Kapoor. He’s the British artist perhaps best known for “Cloud Gate,” sometimes better known as “The Bean,” a public art installation at Chicago’s Millennium Park.

In 2016, Kapoor bought the exclusive artistic rights to Vantablack, a material then known as the world’s blackest black. Vantablack absorbs 99.965 per cent of visible light, creating the impression of complete dark, flatness.

Semple criticized Kapoor for keeping the material for himself, and in response, decided to sell a special shade he made called “The Pinkest Pink.” He made it available for purchase on his website, with one caveat: “By adding this product to your cart you confirm that you are not Anish Kapoor, you are in no way affiliated to Anish Kapoor, you are not purchasing this item on behalf of Anish Kapoor or an associate of Anish Kapoor. To the best of your knowledge, information and belief this paint will not make its way into the hands of Anish Kapoor.”

Semple’s efforts to keep colour accessible during the Adobe/Pantone episode, as well as his response to Kapoor’s attempts to keep Vantablack for himself, have earned him comparisons to Robin Hood.

“People say that. It’s a weird thing,” Semple says self-consciously, before adding: “Maybe it’s just a weird, geeky thing that only I’m interested in, which is why no one’s doing it. But I really enjoy doing it. It’s something I love to do.”

Kapoor’s response was, perhaps, a little less than collegial. He posted a simple, terse retort on his Instagram, a middle finger, dipped in Semple’s pink paint.

But that episode wasn’t just a petty slap fight between two rivals within the narrow confines of the art world. Just as charging Adobe users extra to access some of Pantone’s range of colours wasn’t just a small extra charge. It’s all part of a larger trend to commodify colour.

In 2019, Canada’s trademark laws were updated to allow businesses to trademark colours closely associated with their brands. Tiffany & Co, the jeweller known for its iconic robin’s egg blue box, is often cited as an example.

“So historically, you could claim a Tiffany blue box,” says Toronto intellectual property lawyer Sebastian Beck-Watt. “So you would say the colour blue, as applied to the surface of a box. And then you would say, I’m claiming this trademark in association with jewellery, for example.”

But in 2019, Canada followed other countries and updated its trademark law, allowing brands to trademark colour “per se.” That allows businesses to trademark shades associated with their brand across a more general range of products and services they offer, and stop industry competitors from using similar hues.

TD Bank has applied for the trademark for the green colour associated with its brand, Pantone 361. TD lists a range of products and services, and nobody knows how far companies might go to protect a colour trademark. But we have a hint from other countries.

In 2019, the parent company of mobile giant T-Mobile sued Lemonade, a small insurance company which had just launched in Germany. The parent company, Deutsche Telekom, claimed Lemonade used a shade of pink that was too close to its familiar magenta, or Pantone Rhodamine Red U, and that its trademark over similar shades extended to Lemonade’s insurance business. European countries have allowed businesses to trademark colours before Canada, and Lemonade was forced to remove the pink from its branding in Germany.

In 2020, however, Lemonade won a court challenge in France, when a court ruled “there is no evidence of genuine use of this mark for the contested services.” But the case provides a cautionary tale, because it shows large corporations can drag smaller parties through costly court proceedings, even when they don’t have a valid claim.

It is also illustrative of the subjectivity of colour. How will courts determine when two shades of the same colour are too close to tell the difference? Beck-Watt says there’s no way of knowing how far it will go until the laws are tested in court.

“Something like colour might be an instance where you take a survey of the public and see how close they think these are.”

Determining matters of law so subjectively raises another issue: people’s brains do not process colour in the same way.

“I’m colour blind,” Semple says, without a hint of irony.

Really?

“Yeah, actually. Colour blind. Blue and purple. Which is a rare one.”

In spite of his inability to distinguish between some colours, Semple is fearless in his opposition to any attempt to control and restrict them. Tiffany has had a trademark for Pantone 1837 in the US since 1998. Semple responded by creating “Tiff,” a very similar shade of blue.

It all makes his lawyers nervous.

“They always say the same thing, which is that what I’m doing is risky. And I should be aware of that, you know.” But he has no intention of stopping

It could be called a principled stand, or perhaps brazen, almost reckless. But for Semple, it’s worth it. Art, he says, saved his life when he was in his late teens, when a sandwich triggered a severe allergic reaction and landed him in hospital.

“I kind of died for a few seconds, in the middle of the night. And I said goodbye to my mom and my sister, and my nana had been in. My whole body went into hives and I completely flatlined and kind of died for a bit. And then I came back and everything was different after.”

Art, he says, became a way of coping with the reality that everything could be taken away at any moment.

“It changed everything. So the first thing that happened, which is a bit of a cliche and a bit weird to say, is that I decided I wanted to be an artist. I was like, ‘If I live, I’m going to make art every day, all day.’”

That’s a big reason why Semple is so steadfast in his efforts to stop anyone from trying to “own” or restrict colours.

“No one can own colour,” he says pointedly. “Colour exists. It’s just a phenomenon of nature. How can you own an experience that your eyes have when they see something?”

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Jon S. Dellandrea is an art historian and collector, the chair emeritus of the Art Canada Institute, and the author of The Great Canadian Art Fraud: Forgeries of The Group of Seven and Tom Thomson.

To some, particularly outside Canada, Ojibwe artist Norval Morrisseau was “the Picasso of the North.” But for generations of Indigenous peoples in Canada, he was a trailblazer.

Born on the Sand Point reserve in 1932 and raised by his maternal grandparents, he was taken to St. Joseph’s Indian Residential School in Fort William, Ont., at the age of 6, before dropping out of school altogether by the time he was 10. As he developed as a painter, inspired by Indigenous mythology and traditional pictography, he founded the influential Woodland School and his exhibits appeared around the world, from the National Gallery of Canada to the Smithsonian in Washington.

“At a time when enforced assimilation was national policy and First Nations had only recently been accorded the right to vote in federal elections,” wrote Carleton University art history professor Carmen Robertson, “Morrisseau’s paintings stood out because few Indigenous people made art that was viewed as contemporary within the narrow framework accepted in mainstream cultural circles.”

By the time Morrisseau died in 2007, at the age of 75, he had become widely admired for his remarkable talent and work. The art market reflected this, too, with significant prices and demand for his pieces.

And for all his achievements and all of his fame, he also earned interest from forgers, driven by an art market fuelled by greed. That was true in life – he himself identified at least 175 fakes in six galleries during his lifetime – and it is also true in death.

Earlier this month, in what one police officer called “the biggest art fraud in world history,” eight men based out of Ontario were accused of operating three groups that mass-produced forged Norval Morrisseau paintings, which were then sold for tens of millions of dollars. More than 1,000 works were seized; police say that at least one of the groups issued faked certificates of authenticity. Many buyers have since learned that they were apparently swindled, and the underlying market for Morrisseau paintings have collapsed.

The schemes appear to have unravelled after the release of a 2019 documentary, There Are No Fakes, which followed Kevin Hearn – a member of Canadian band the Barenaked Ladies – as he sued a gallery that sold him what was later flagged as a fake Morrisseau. “I started thinking, well, how many other people have been ripped off by this guy or other people?” Mr. Hearn told The Canadian Press in 2020. Police proceeded to investigate many of those accused in the film.

But the news appears to have been met by Canadians at large with a relative shrug, likely because there is a feeling that the “other people” Mr. Hearn is thinking about are wealthy, or are public figures, or otherwise not badly dented by losing a few million dollars.

The damage that art fraud wreaks, however, goes deeper than that. “These are not small, victimless crimes,” said Ontario Provincial Police Detective Inspector Kevin Veillieux, who is managing the Morrisseau forgery case. “These are people that took advantage of one man’s legacy in order to turn a profit for themselves.” These crimes are certainly not new to the art world, either – and they are an issue of the art world’s own making.

Forgery has long been a part of the story of art collecting. In 1496, a 21-year-old artist in Rome produced a marble sculpture of a sleeping Eros, the Roman god of love and desire. The piece was buried in the ground to quickly produce the effect of aging, and when it was dug up a dealer sold it as an authentic antiquity to Cardinal Raffaele Riario, a serious collector of ancient art. A few years later, Riario discovered the real origin of the sculpture – but rather than accuse the young artist of forgery, he chose to become his patron. Why? He was struck by the talent of the artist, who history now remembers as the Renaissance giant Michelangelo.

Fast forward to the 1930s and 40s. Han van Meegeren, a Dutch painter of remarkable skill, was more than a little irritated that his talent was not appropriately recognized by the nasty community of art critics and curators at the time. His revenge? Fake the work of the famous 17th-century painters of the Dutch Golden Age, particularly the work of Johannes Vermeer, the creator of Girl With A Pearl Earring.

Eventually, his country’s government charged him with fraud and aiding and abetting the enemy, accusing him of selling national treasures – such as Vermeer paintings – to the Nazis. But after his arrest, van Meegeren revealed that the paintings were forgeries.

Although he died fairly young in 1947 at the age of 58, van Meegeren had the last laugh. Movies have been made and books have been written about his story, and his fake art sold for the equivalent of US$250-million in today’s currency – an amount that includes the money defrauded from the German Nazi leaders who bought the “Vermeer.”

After the Second World War, he managed to convince the Dutch courts that the sale was an effort to outwit the Nazis, rather than to simply profit from them, and he received just a one-year prison sentence for forgery, of which he served only one day before dying.

Issuing fake certificates of authenticity is not new to the art world, either. Dealer labels are not difficult to reproduce, and faking stamps, such as the one that Group of Seven painter J.E.H. MacDonald designed to authenticate the works of Tom Thomson after his peer’s drowning in 1917, does not take a lot of engineering genius.

Canada has had its own well-publicized art frauds prior to the Morrisseau affair, too. Significant as that scheme is believed to be, the Canadian art world has seen forgeries on a major scale before: of the works of the Group of Seven, the Painters Eleven, the Beaver Hall Group and the Painters of the Montée Saint-Michel. Unfortunately, the public’s memory is short, and so – perhaps not surprisingly – history repeats itself.

But the Group of Seven example is particularly instructive. In the early 1960s, in a dramatic court case that shook the Canadian art community, gallery owner Leslie W. Lewis and art dealer Neil Sharkey were sent to jail for duping the public with fraudulent art of substantial quantities and not insubstantial prices.

The similarities between the 1963 and 2023 cases are interesting. They both include a concerted effort by the Ontario Provincial Police to track down the sources of the fake paintings and to bring those responsible to justice; they both included some prominent Canadians, as well as some ordinary collectors looking for a bargain; and both sparked a response that perhaps none of this really mattered, as ordinary people were not harmed. Rather, the argument went, it was a few rich doctors, lawyers and entertainers who could afford to spend the money – and lose it to fraudsters, too.

But the judge saw things differently in 1963. “It was the most reprehensible type of fraud and it is difficult to know what effect it will have on many people,” said Justice Robert Forsyth. “It will shake the confidence of art lovers.” That argument should be considered today.

One of the most interesting facts I discovered in doing research for my book was that in the early 1960s, it was an open secret that some Canadian art dealers knew that fake European art had been dumped in Canada for many years – and were content to sell the works all the same. Lewis, one of the dealers sentenced to jail in 1963, had been selling in excess of 580 paintings a year through Ward-Price auctioneers, which at that time was Canada’s largest auction house. We don’t know definitively how many of those paintings were fake, but the number was large. How that auction house escaped prosecution remains a mystery: Ben Ward-Price testified that he just sold what was consigned to him and that he was “ignorant” of the art offered, even though the firm advertised “expert appraisals.”

What we do know is that many mainstream dealers in Canadian art had, for many years, turned a blind eye to this aspect of the junk art market until junk Canadian art began to appear. Suddenly, their core business was being threatened. Ignorance of the issue quickly morphed into righteous indignation.

In 1962, Max Stern, then-owner of Montreal’s venerable Dominion Gallery, wrote to the artist Robert Pilot – at the time, the president of the Royal Canadian Academy – to make the case that the fakes were an existential threat to the Canadian art market. “Why is the sale of fakes so dangerous?” Stern wrote. “The buyer who has acquired a fake and finds out he has a worthless object on his hands will never buy another painting again, be it by a living artist or an artist from the past.”

Stern, who wrote an op-ed for The Globe and Mail at the time, went on to say: “Among Canadian fakes are fakes of paintings by A.Y. Jackson, Tom Thomson, J.E.H. MacDonald, Clarence Gagnon, J.W. Morrice and many others. Canada is unfortunately also flooded with fakes which are imported from abroad. We are flooded with fake Corot, Constable and Krieghoff, only to mention a few. The educational and cultural damage to our youth who grow up with this trash, and are even taught to admire it, is immense and the financial loss goes into the millions of dollars.”

Now we find ourselves many years later with the Morrisseau case in the headlines, and with tales of art forgery increasingly becoming everyday news. Just last summer, allegations about forgeries of another popular art icon – the late Jean-Michel Basquiat, who died tragically at the age of 27 and whose works are worth millions of dollars in the art auction market today – prompted the Federal Bureau of Investigation to raid the Orlando Museum of Art. And work by Maud Lewis has been selling for record prices, including a $350,000 sale last year for one painting that the Nova Scotia icon had traded for a grilled cheese sandwich. Those prices, as well as a folksy story that makes authentication difficult – she reportedly produced two or three small paintings a day, many of which were sold for a few dollars near a Nova Scotia highway – have attracted forgers, including her own husband, who reportedly sold fakes under her name after she died.

So what do we make of all this? Why does art fraud happen?

The simple explanation is that humans like to own something that other humans view as valuable and rather cool: Gucci bags, Rolex watches … the list goes on, including that great painting that might hang on your a wall, regardless of whether it’s real.

But there is something unique to this when it comes to art. Art is meant to induce powerful feelings in a viewer, but that collides with the values of the art world – an illogical enterprise that, at its core, is aimed at manufacturing a small group of stars to worship and then hyping them up.

A leading art dealer once told me that his principal talent was his “great eye,” and I never fully understood this comment. If the “great eye” is the appreciation of the artistic talent of a painter, then I think I understand the concept because I, and many people around the world, have one of those “great eyes.” If the great eye is to look to the bottom corner of a painting to recognize the signature, and from that to attribute value, then that feels like something else altogether.

This was an issue even in the 1960s case. “Art consists of lines on a canvas. You either like it or you don’t,” Group of Seven member A.Y. Jackson testified while on the stand.

A.J. Casson, then the youngest living member of the Group of Seven, also grappled with the debate during the trial. The painter had worked directly with the Ontario Provincial Police on the forgery investigation; when newbie OPP inspector James Erskine told the Art Gallery of Ontario that he knew very little about Canadian art, the gallery advised him to reach out to Casson, who agreed to help because he cared deeply about the reputation of his colleagues whose work was being faked. That partnership led to the identification of more than 100 fake paintings, which were then seized – a remarkable effort that earned Casson a special OPP badge, which read “Art Advisor.” As a result, Casson also took the stand, where he was cross-examined by the lawyer for Sharkey.

“Would you agree that there are two types of people, those who admire a sunset and those who admire themselves for admiring a sunset?” the lawyer asked. Casson paused, and then responded: “Yes, I see what you mean. These people were buying names, just names, names and nothing more.”

So, the market creates stars – but the logical endpoint of this may be that the signatures of the stars are made to matter much more than the quality of the art. This is why the work of some artists of quite remarkable talents languish in the abyss of the ignored, while lesser talents find their works featured in the glossy promotions of the next great exhibition. There are many stories of galleries around the world paid by promoters to feature the works of one profit-making darling or another. This is the conundrum of the art world.

The art market often feels like penny stocks in the mining industry: Investors buy in when exploratory drilling is going on, and then try to sell at a profit while the hype machine props up the share price. Never mind that the mine may not even lead to any actual extraction, and the stock could be deemed worthless: The profits are the thing.

So what can the art community do to instill confidence, celebrate talent and recognize actual value, rather than only the monetary kind?

On one level, I think the answer is clear: We need rigorous scholarship and serious academic study of art, confidence in the integrity of auction houses and dealers, and meticulous attention to “real” provenance, as opposed to the kind that is easily faked, such as stamps or certificates. Jackson Pollock, for instance, is perhaps the most forged artist of the postwar period, and authentication of his work increasingly relies on scientific analysis, including by spectroscopic techniques that compare the pigments on a given painting against the remnants of pigments on Pollock’s studio floor.

Canada can even claim some credit for the introduction of scientific rigour to the authentication of art. The late Dr. Nathan Stolow of the National Gallery of Canada played a key role in the Group of Seven forgery case by providing analysis and forensic examination, techniques that he would share with other conservators and make integral to National Gallery collections.

In the case of Morrisseau, there is the added layer that he was Indigenous, and Indigenous art is a field that continues to be understudied. “With Morrisseau, a large reason for the ease of forgery has had to do with the fact that until very recently a scarce amount of attention was given to Canadian Indigenous art,” Dr. Sara Angel, the founder of the Art Canada Institute, told me. “To spot a forgery one needs to know what one is looking at. Although Morrisseau is a star, and despite the attention of prominent scholars, the scholarship on him still needs to catch up.”

But ultimately, the art world needs to change how it sells itself. If the industry continues to be defined by stars and icons – about the names, and not the works – it will continue to invite fakery.

It’s only appropriate that it appears to have been Kevin Hearn who helped launch the investigation into the Morrisseau fakes. After all, his band, the Barenaked Ladies, gave the world an iconic song about the pleasures of wealth. “If I had a million dollars,” it goes, “I’d buy you some art, a Picasso or a Garfunkel.”

What is the punchline here? If you have money, flaunt it – and “famous art” is a good way to do it. Whether it’s a painting by a cubist legend or by a singer-songwriter doesn’t matter: What matters is the money. And as long as that’s the case, the art world will always have forgery as a problem.

Video: How the real art gets made

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By Tom Hals and Blake Brittain

(Reuters) – Last year, Kris Kashtanova typed instructions for a graphic novel into a new artificial-intelligence program and touched off a high-stakes debate over who created the artwork: a human or an algorithm.

“Zendaya leaving gates of Central Park,” Kashtanova entered into Midjourney, an AI program similar to ChatGPT that produces dazzling illustrations from written prompts. “Sci-fi scene future empty New York….”

From these inputs and hundreds more emerged “Zarya of the Dawn,” an 18-page story about a character resembling the actress Zendaya who roams a deserted Manhattan hundreds of years in the future. Kashtanova received a copyright in September, and declared on social media that it meant artists were entitled to legal protection for their AI art projects.

It didn’t last long. In February, the U.S. Copyright Office suddenly reversed itself, and Kashtanova became the first person in the country to be stripped of legal protection for AI art. The images in “Zarya,” the office said, were “not the product of human authorship.” The office allowed Kashtanova to keep a copyright in the arrangement and storyline.

Now, with the help of a high-powered legal team, the artist is testing the limits of the law once again. For a new book, Kashtanova has turned to a different AI program, Stable Diffusion, which lets users scan in their own drawings and refine them with text prompts. The artist believes that starting with original artwork will provide enough of a “human” element to sway the authorities.

“It would be very strange if it’s not copyrightable,” said the 37-year-old artist of the latest work, an autobiographical comic.

A spokesperson for the copyright office declined to comment. Midjourney also declined to comment, and Stability AI did not respond to requests for comment.

SMASHING RECORDS

At a time when new AI programs like ChatGPT, Midjourney and Stable Diffusion seem poised to transform human expression as they smash records for user growth, the legal system still hasn’t figured out who owns the output — the users, the owners of the programs, or maybe no one at all.

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Billions of dollars could hinge on the answer, legal experts said.

If users and owners of the new AI systems could get copyrights, they would stand to reap huge benefits, said Ryan Merkley, the former chief of Creative Commons, a U.S. organization that issues licenses to allow creators to share their work.

For example, companies could use AI to produce and own the rights to vast quantities of low-cost graphics, music, video and text for advertising, branding and entertainment. “Copyright governing bodies are going to be under enormous pressure to permit copyrights to be awarded to computer-generated works,” Merkley said.

In the U.S. and many other countries, anyone who engages in creative expression usually has immediate legal rights to it. A copyright registration creates a public record of the work and allows the owner to go to court to enforce their rights.

Courts including the U.S. Supreme Court have long held that an author has to be a human being. In rejecting legal protection for the “Zarya” images, the U.S. Copyright Office cited rulings denying legal protection for a selfie snapped by a curious monkey named Naruto and for a song that the copyright applicant said had been composed by “the Holy Spirit.”

One U.S. computer scientist, Stephen Thaler of Missouri, has maintained that his AI programs are sentient and should be legally recognized as the creators of artwork and inventions that they generated. He has sued the U.S. Copyright Office, petitioned the U.S. Supreme Court and has a patent case before the U.K. Supreme Court.

Meanwhile, many artists and companies that own creative content fiercely oppose granting copyrights to AI owners or users. They argue that because the new algorithms work by training themselves on vast quantities of material on the open web, some of which is copyrighted, the AI systems are gobbling up legally protected material without permission.

Stock photo provider Getty Images, a group of visual artists and owners of computer code have separately filed lawsuits against owners of AI programs including Midjourney, Stability AI and ChatGPT developer OpenAI for copyright infringement, which the companies deny. Getty and OpenAI declined to comment.

Sarah Andersen, one of the artists, said granting copyrights to AI works “would legitimize theft.”

‘HARD QUESTIONS’

Kashtanova is being represented for free by Morrison Foerster and its veteran copyright lawyer Joe Gratz, who is also defending OpenAI in a proposed class action brought on behalf of owners of copyrighted computer code. The firm took on Kashtanova’s case after an associate at the firm, Heather Whitney, spotted a LinkedIn post by the artist seeking legal help with a new application after the “Zarya” copyright was rejected.

“These are hard questions with significant consequences for all of us,” Gratz said.

The Copyright Office said it reviewed Kashtanova’s “Zarya” decision after discovering the artist had posted on Instagram that the images were created using AI, which it said was not clear in the original September application. On March 16, it issued public guidance instructing applicants to clearly disclose if their work was created with the help of AI.

The guidance said the most popular AI systems likely do not create copyrightable work, and “what matters is the extent to which the human had creative control.”

‘COMPLETELY BLOWN’

Kashtanova, who identifies as nonbinary and uses “they/them” pronouns, discovered Midjourney in August after the pandemic largely shut down their work as a photographer at yoga retreats and extreme-sports events.

“My mind was completely blown,” the artist said. Now, as AI technology develops at lightning speed, Kashtanova has turned to newer tools that allow users to input original work and give more specific commands to control the output.

To test how much human control will satisfy the copyright office, Kashtanova is planning to submit a series of copyright applications for individual images chosen from the new autobiographical comic, each one made with a different AI program, setting or method.

The artist, who now works at a start-up that uses AI to turn children’s drawings into comic books, created the first such image a few weeks ago, titled “Rose Enigma.”

Sitting at a computer in their one-bedroom Manhattan apartment, Kashtanova demonstrated their latest technique: they pulled up on the screen a simple pen-and-paper sketch they had scanned into Stable Diffusion, and began refining it by adjusting settings and using text prompts such as “young cyborg woman” and “flowers coming out of her head.”

The result was an otherworldly image, the lower half of a woman’s face with long-stemmed roses replacing the upper part of her head. Kashtanova submitted it for copyright protection on March 21.

The image will also appear in Kashtanova’s new book. It’s title: “For My A.I. Community.”

(Reporting By Tom Hals and Blake Brittain; editing by Noeleen Walder, Amy Stevens and Claudia Parsons)

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