With the evolving use of artificial intelligence, the discussion around AI’s role in art has become an ongoing debate. Will AI stifle creativity, or is it merely a tool for artists to explore new avenues? Digital creators lie at the intersection of these crossroads, as AI has become an assistive tool to create anything from photos and videos to other content. However, this also limits the rights of the actual creators who use such tools.
Currently, a work of art solely created by AI cannot be copyrighted under United States law. However, an artist is challenging this in a recent lawsuit. In 2022, Jason Allen attempted to file for a copyright for his award-winning image entitled “Théâtre D’opéra Spatial.” The United States Copyright Office denied his request, stating, “The Board finds that the Work contains more than a de minimis amount of content generated by artificial intelligence (‘AI’), and this content must therefore be disclaimed in an application for registration. Because Mr. Allen is unwilling to disclaim the AI-generated material, the Work cannot be registered as submitted.”
Photo: Jason M Allen/ Midjourney
The issue in the refusal was that Jason used Midjourney, a generative AI tool that can convert language prompts into images, and failed to disclose its use. Jason claims that the work is still a product of human authorship and that he had to use his own creativity to initiate prompts to create the artistic expression of his idea. He isn’t the first to be rejected for such images; the Copyright Office has previously denied numerous copyright applications from artists using Midjourney.
Jason is seeking a Colorado federal court to reverse this decision. In the court filing, his attorney alleges that “in the months since the final agency action was issued, infringement of the Work has crushed the Plaintiff’s ability to monetize his artistic creation.” The filing also outlines the lengthy amount of time and prompts Jason had to use to create the image, even comparing this process to a director and the many takes they go through when creating a movie scene. The filing stresses that Midjourney lacks independent creativity and could not generate the image on its own.
Since the filing, the US Copyright Office has declined to comment on the matter, citing pending litigation. Jason hopes to ultimately secure a copyright for the photo and recover attorney fees and any relief the court deems proper. This case illuminates the differing perspectives between art traditionalists and those seeking to use technological advancements as a new form of creativity.
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