“Allen said his inability to obtain copyright registration for the work has led to infringement that ‘has crushed the Plaintiff’s ability to monetize his artistic creation.’”
“Théâtre D’opéra Spatial” – Source: Copyright Office decision
Jason Allen, the author of the two-dimensional digital artwork, titled “Théâtre D’opéra Spatial,” which was rejected by the U.S. Copyright Office last year, has filed a request for declaratory judgment with the U.S. District Court for the District of Colorado asking the court to find that his work is eligible for copyright registration.
The Review Board of the U.S. Copyright Office published a final decision denying registration of Allen’s work in September 2023. The work was created using the generative artificial intelligence (GAI) system, Midjourney.
According to the complaint, Allen said his inability to obtain copyright registration for the work has led to infringement that “has crushed the Plaintiff’s ability to monetize his artistic creation.” In addition to providing specific examples of such infringement, the complaint also details the amount of time and effort Allen put into creating the work, which amounted to a total of 6,864 minutes (114.4 hours) “selecting, arranging, and instructing the AI on what he wanted it to generate.” This does not take into consideration “the time he spent thoughtfully crafting each instruction, taking breaks to return with fresh eyes, reflecting on what he might be doing wrong, understanding why the AI was unable to comprehend all his instructions, and devising creative solutions to tackle these issues,” added the complaint.
In March 2023, following some high-profile cases involving works made using GAI, the Copyright Office issued a statement of policy indicating that, in assessing registrability of works including AI-generated content, it will first ask “whether the ‘work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.”
If a work contains AI-generated material, the Office will first consider “whether the AI contributions are the result of ‘mechanical reproduction’ or instead of an author’s ‘own original mental conception, to which [the author] gave visible form.’” This will depend on the particular circumstances, how the AI tool works and how it was used, and will be determined on a case-by-case basis.
If a work is determined to have been created solely by a machine, it will not be registered. The Office called out Midjourney as an example of AI tools that generate complex musical, visual and written works with a simple prompt from a human. “Based on the Office’s understanding of the generative AI technologies currently available, users do not exercise ultimate creative control over how such systems interpret prompts and generate material,” wrote the USCO.
In line with that guidance, the decision to reject Allen’s work cited “more than a de minimis amount” of AI-created content and said that the AI content was not disclaimed.
According to the Copyright Office guidance, where AI-generated works also contain enough human authorship to support copyright protection, the Office will grant registration of “the human-authored aspects of the work,” but the AI-generated portions must be disclaimed and the use of AI tools disclosed.
Allen did not disclose his use of Midjourney to create the work in the application, but his work had drawn national attention as “the first AI-generated image to win the 2022 Colorado State Fair’s annual fine art competition,” according to the decision. The examiner therefore requested additional information about the use of Midjourney in creating the work.
Allen’s complaint cites Loper Bright Enterprises v. Raimondo, in which the U.S. Supreme Court in June 2024 overruled its own seminal case on administrative agency deference, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc.
Loper Bright mandates that the district court should review the “factual situation and law with a fresh set of eyes,” says Allen’s complaint, giving the Copyright Office decision only “some weight.”
The complaint goes on to charge that the Copyright Office decision was arbitrary and capricious, flouting the Copyright Act’s standard for protection; that Section 313.2 of the Compendium of Copyright Office Practices does not bar registration of the work because a) the elements of authorship were conceived by a human and b) a human executed the elements of authorship; that the Office misapplied the human authorship requirement; and that, in denying registration of the work, the Office has “failed to remain technologically neutral,” among other arguments.
The complaint claims violations of the Administrative Procedures Act and the Copyright Act and seeks an order that the Office must register the work.
