In 1963, Jack Kirby penciled the first issue of "The Avengers" based on Stan Lee's script. A letterer rendered Lee's words on the pages. An inker meticulously inked over the lines Kirby drew. A colorist painted a color guide for each panel so that separations could be made by hand before sending the comic off to the printer.

In 2019, Russell Dauterman drew the first issue of "War of the Realms" based on Jason Aaron's script. Dauterman penciled and inked the comic in Photoshop with a drawing tablet and a creative pen display. A letterer rendered Aaron's words using Adobe Illustrator. A colorist colored the pages using digital brushes and Photoshop techniques.

In 2022, Midjourney, a generative AI service that uses a machine learning algorithm to generate images, 'drew' the first issue of "Zarya of the Dawn." Midjourney generated images based on Kris Kashtanova's text prompts. Kashtanova selected her choice of the images and slightly modified them in Photoshop. Kashtanova arranged the images in panels on the page. Kashtanova typed out her words in text bubbles overlaying the images.

A feat that used to require five creators was accomplished by one woman and an algorithm. With AI, the cost and time to produce a comic can be significantly reduced. While the introduction of digital art tools gave comic book artists access to more efficient means of creation, the introduction of AI could largely replace human artists.

In February of 2023, the Copyright Office limited the scope of Kashtanova's copyright registration for "Zarya of the Dawn." It found that while certain elements of the comic book could be protected, the AI-generated art used therein was not. Although Kashtanova wrote the prompts, Midjourney "originated the 'traditional elements of authorship' in the images." Even Kashtanova's edits in Photoshop did not amount to a "sufficient amount of original authorship." However, Kashtanova was the author of "Zarya of the Dawn's" "text as well as the selection, coordination, and arrangement of the Work's written and visual elements. That authorship is protected by copyright."

Kashtanova's copyright narrowly covers her comic book. Others can reproduce the underlying images, but cannot reproduce and use the comic's exact arrangement. Applying this to Marvel's opening sequence of "Secret Invasion," the frames of the title sequence may lack copyright protectability, but the arrangement of the images in the video may be protectable.

The lack of protection over images may discourage Kashtanova, as well as other individuals, from using AI-generated art. This may slow or prevent the replacement of human artists in the industry. Publishers may be more inclined to publish books drawn by human artists, as they would be entitled to more comprehensive protections. However, other legal protections may still provide significant protectability for works that include AI-generated art.

Even though AI-generated images may not be directly covered by copyright, aspects of them can be. Copyright may protect "the artistic rendition of a character in visual form or the literary delineation of the character's specific attributes in textual form." Copyright Law Compendium, 313.4(H).

For example, the 9th U.S. Circuit Court of Appeals in the 2015 case, DC Comics v. Towle, found the Batmobile to be copyright protectable because it had "distinctive physical and conceptual qualities, its character traits and attributes remained consistent and identifiable even though its specific physical appearance changed, and it had unique elements of expression and a highly recognizable name." DC may therefore prevent others from producing competing works containing the Batmobile. A vast number of comic book characters, particularly those owned by major comic book publishers, also meet these criteria.

Marvel and DC also maintain trademark protections on the names and likenesses of their characters. For example, the U.S. District Court for the Northern District of Georgia in the 1984 case, DC Comics, Inc. v. Unlimited Monkey Bus., Inc., found that "[b]y virtue of the widespread popularity of the SUPERMAN and WONDER WOMAN stories and their principal characters" the marks "have obtained virtually universal recognition in the United States and throughout the world as unique, distinctive marks."

Therefore, DC was able to establish trademark infringement and unfair competition where the defendant used the "SUPERMAN costume," "the 'S' chest shield," and "colorable imitations of the WONDER WOMAN costume," because they all indicate DC Comics as the source.

While the Copyright Office has clarified that the human authorship requirement limits the subject matter that may be registerable by the Copyright Office, AI-generated art may still be protectable according to the fictional character protections described above.

For example, if Marvel published a Spider-Man comic with an AI-generated image of Spider-Man as the cover, could Marvel stop a competing work from reproducing the image? The likely outcome is that Marvel could protect elements of the Spider-Man character on the AI-generated Spider-Man cover, even if they could not protect the image itself.

If Marvel were to publish an entire Spider-Man comic using AI-generated art, it may be entitled to the following protections: the arrangement of the images (copyright), the text overlaying the images (copyright), the artistic rendition of Spider-Man characters (copyright), distinctive elements of Spider-Man characters in the images (trademark), and certain names, logos, and icons in the images (trademark).

Already, reproduction of elements not listed among these protections is unlikely to significantly concern the publisher. Even if someone were to create a competing work by reproducing the AI-generated images without the protected elements, there is a chance their work would be considered a derivative work — a work based upon one or more preexisting works that recasts, transforms, or adapts the preexisting work. Rather than being a derivative work of the AI-generated image, the competing work could be a derivative work of the characters, earlier works, or the story written by the creator. The owner of the copyright may bring an infringement lawsuit against someone who creates a derivative work without permission.

While the Copyright Office's policy seems to narrow the scope of protection for comic books comprising AI-generated images, creators can still significantly protect their comics. Without further limitations on the protectability of AI-generated art in comics, human artists face the risk of being replaced by AI. Of course, AI-generated art in its current state is far from on par with that of human artists. Even the use of AI-generated images in Marvel's "Secret Invasion" seems to be a deliberate decision to make the sequence feel uncanny. It is clear from the quality of these images that they were not made by a human artist.

Additionally, the public's reception to comics made using AI-generated art will affect their marketability. The degree of backlash Marvel faces for its "Secret Invasion" introduction could indicate the feasibility of publishing comics 'co-created' by AI. How AI will transform the comic book industry remains to be seen, but the Copyright Office's recent decision appears to do little to slow it down.