Artist appeals copyright denial for prize-winning AI-generated work

AI art may create a whole new world of copyright trolling, expert warns.

Jason Allen—a synthetic media artist whose Midjourney-generated work "Théâtre D'opéra Spatial" went viral and incited backlash after winning a state fair art competition—is not giving up his fight with the US Copyright Office.

Last fall, the Copyright Office refused to register Allen's work, claiming that almost the entire work was AI-generated and insisting that copyright registration requires more human authorship than simply plugging a prompt into Midjourney.

Allen is now appealing that decision, asking for judicial review and alleging that "the negative media attention surrounding the Work may have influenced the Copyright Office Examiner's perception and judgment." He claims that the Examiner was biased and considered "improper factors" such as the public backlash when concluding that he had "no control over how the artificial intelligence tool analyzed, interpreted, or responded to these prompts."

As Allen sees it, a rule establishing a review process requiring an Examiner to determine which parts of the work are human-authored seems "entirely arbitrary" since some Copyright Examiners "may not even be able to distinguish an artwork that used AI tools to assist in the creation from one which does not use any computerized tools."

Further, Allen claims that the denial of copyright for his work has inspired confusion about who owns rights to not just Midjourney-generated art but all AI art, and as AI technology rapidly improves, it will only become harder for the Copyright Office to make those authorship judgment calls.

That becomes an even bigger problem if the Copyright Office gets it wrong too often, Allen warned, running the risk of turning every artist registering works into a "suspect" and potentially bogging courts down with copyright disputes.

Ultimately, Allen is hoping that a jury reviewing his appeal will reverse the denial, arguing that there is more human authorship in his AI-generated work than the Copyright Office considered when twice rejecting his registration.

Allen told Ars that he expects to win, but Kit Walsh—a senior staff attorney focused on copyright law for the nonprofit the Electronic Frontier Foundation (EFF)—told Ars that EFF has been silent on this case so far "because the Copyright Office has pretty much been getting it right."

"I think as a practical matter, it is right to say that if the ultimate image is generated by an AI system, then it's not a work of human authorship, so it is not entitled to copyright," Walsh said.

While this debate about copyrighting AI art rages on, it would be "dangerous" for the Copyright Office to "err on the side of granting more monopolies on speech," Walsh said, because it's very hard to prove what image was in an artist's mind. Willy-nilly granting rights to anyone who tweaks a non-copyrightable AI-generated image would risk creating a new kind of copyright troll, Walsh warned.

"People are going to be overconfident that they actually subjectively have this precise image in their head," Walsh said. "So, let's just be clear: It's something that is unlikely to be true even when people think it is."

Prompts conjure what’s in the artist’s mind?

According to Allen, the Copyright Office Examiner failed to consider that Allen was using Midjourney not as an engine of random outputs but as a tool that he could use to get a specific image out of his head. In his complaint, he said that he "initially envisioned a detailed image of women in Victorian dresses wearing space helmets" while "performing opera on stage," with "their attire presenting a juxtaposition between old-world charm and a futuristic twist."

"Théâtre D'opéra Spatial" is a wholly original image expressing his idea, Allen said, and to produce that human expression, he dedicated more than 100 hours to refining Midjourney text prompts through an iterative process that he estimates took more than 600 prompts. Allen told Ars that through this process, he crafted his own prompt language after determining "which parts of his instructions were effective and which were not," as well as which parts were "not even considered."

Like a photographer staging a shoot or a movie director communicating his vision to a cameraman, Allen argued that he—not Midjourney—composed the image, arranging the AI-generated elements of the image through prompting to match his precise vision. He argued that this "tedious, complicated, and often frustrating endeavor" went beyond the minimum standard required for human authorship that copyright law requires.

Allen "made the creative decisions on whether or not to retain, remove, enhance, or alter the elements present in the output, or to add new ones," his complaint said. "Midjourney, lacking autonomous creativity, simply executed the detailed guidance" that Allen provided, proving that his "extensive effort and careful direction were crucial in creating the image, far surpassing the role of the AI tool."

The Copyright Office has said that Allen's prompts are copyrightable, but only Midjourney was responsible for the output derived from the prompts. Walsh told Ars that if Allen had used any non-AI tool to transform the final image a little, even just applying a filter, he would be "good to go" to register his work and sue anyone who "verbatim copies" it.

But Allen thinks his work already demonstrates enough human authorship without any filtering or further transformation. In his appeal, Allen requested a judicial review to determine whether the denial of copyright was "arbitrary and capricious." Otherwise, "fully deferring to the agency's determination without closer examination of their rationale" will "waste" both the courts' and artists' limited resources, Allen alleged, while providing little protection for artists confused about how to adhere to the Copyright Office's "hazy guidance."

In particular, Allen criticized the Copyright Office's AI disclosure requirement as impossible to enforce fairly while calling out the Office's request for information about his prompting process as "unusual" and "unduly burdensome."

Allen alleged that the Office exposed its own "pre-formed bias" when justifying refusing to register his work, "multiple mentions" that he "did not explicitly disclose the use of AI"—"despite there being no requirement to disclose tools used in creation when requesting copyright registration." He accused the Office of having a "desire to punish" him "for using a technology that the Office finds distasteful."

"If enforced uniformly," his appeal warned, the disclosure requirement "would stifle creation and artistry."

Allen is currently resisting sharing his prompts with the Office, partly because he's concerned about revealing his "magic trick" to produce such an impressive AI-generated output.

"This feels like somewhat of a trap," his appeal said, especially since "no standard has been set for what particular prompts would satisfy the Examiner."

Crafting the perfect prompt is human authorship

Allen is frustrated by the denial of copyright because it usually doesn't take that much originality to register a work. The bar is intentionally set very low, he told Ars, and his appeal argued that "Théâtre D'opéra Spatial" more than meets that bar since copyright law has long recognized human authorship, even when "the final product is created 'directly or with the aid of machine or device.'"

Further, it is "undisputed that Midjourney requires a human to input information and is not sentient," Allen argued.

"Why are we making a distinction with the AI as a machine, as a separate entity?" Allen asked Ars. "This is my biggest peeve. We're referencing the software program as if it's other than human. It's like, how stupid is this—the dumbest idea I've ever heard in my lifetime."

To create his work, Allen used what he called "creative intention" to make specific choices, like which colors or textures were used or what balance of realism and abstraction should be struck.

"These decisions shape the final piece, reflecting the artist’s unique vision and effort, resulting in a work that directly manifests their artistic vision," Allen's appeal said, noting it took 624 prompts to get the Midjourney output he desired. Like Jackson Pollock dripping paint on a canvas in a seemingly random nature to express his artistic vision, Allen's creative intention, he argued, met "the Copyright Office’s customary standard of significant human creative input necessary to qualify for copyright protection."

Allen thinks that crafting the perfect prompt should be considered human authorship when creating AI-assisted works, claiming that the Copyright Office misinterpreted the law to find "Théâtre D'opéra Spatial" was conceived by a machine.

"It is the Office’s understanding that, because Midjourney does not treat text prompts as direct instructions, users may need to attempt hundreds of iterations before landing upon an image they find satisfactory," the Copyright Office explained.

Because of what Allen considered a fundamental misunderstanding of "the nature of creative control in AI-assisted art," the Copyright Office concluded that the text prompt was Allen's sole contribution to the AI output. That seemingly ignored the critical role that crafting the precise prompt played in generating the specific image, Allen alleged, while downplaying his creative process as simply clicking a button over and over to generate different results.

"The Office misapplied the 'human authorship' requirement and ignored the fundamental principle that copyright is meant to be granted to expressions of ideas originating from a human mind," his appeal said.

According to Allen, the Office also contradicted its own reasoning by acknowledging that his "prompts provided general directions to elicit output from the AI technology" while also claiming that he "had no control over how the artificial intelligence tool analyzed, interpreted, or responded to these prompts."

Allen believes his work passes the law's test for human authorship, saying that "neither a machine nor an artificial intelligence program independently created the Work. Rather, it is a result of a prompt dialogue resulting from a conceptual framework provided by a human."

"The process of prompting, correcting and re-prompting hundreds of times for the production of a specific image that was formed in the author’s mind qualifies as the required 'minimum creative spark,'" Allen argued.

Further, he argued that "the Midjourney system is inherently multimodal, requiring human interaction in order to function in more ways that just providing prompts. Human decisions must be made in order for certain paths in latent space to be taken, and the number of branching possibilities is infinite. Allen chose many paths, manipulating the machine to do what he wanted, gradually refining and arriving at the image he wanted to create."

Allen insists that he uses Midjourney as "a tool for the realization of his artistic and creative concept," and he told Ars that whichever way the copyright decision goes, he'll keep making AI-assisted art.

Walsh told Ars that in a perfect world where "we had infinite judicial resources and wisdom and we had perfect knowledge of every creator's artistic process," there could be a principle like there is in patent law that provides a path for artists to prove that they had an AI-generated image in their mind. But for now, Walsh said that "if you have a work that's the final creative step is done by an AI" system, "we can't know all of the things that would answer" whether a human created it "in a philosophically satisfying way." So "it makes a lot of sense, as a practical matter," for artists to "just tweak something and get a copyright" rather than debate the source of AI outputs.

AI may create a new kind of copyright troll

Allen thinks the Copyright Office's "absurd" takes on AI-assisted works are no different from ill-fated arguments that the introduction of cameras might stop people from painting if photographs could be copyrighted. By denying a copyright to his AI-generated work, the Office "goes against the Constitution's mandate to promote the progress of science and the useful arts," potentially disrupting advancements in AI as artists avoid the tools and possibly stifling AI art in the process, Allen argued.

"Just as the advent of the camera ushered in a previously unimagined art form, AI-assisted art holds the potential to do the same," Allen argued. "This evolution should be embraced as a positive development in the creative landscape. When photography first gained popularity, critics argued that it lacked skill and artistry, yet it has since become a highly respected and valued art form."

In his appeal, Allen urged that "copyright law should remain technologically neutral," allowing artists to embrace new technologies while protecting their works to avoid stifling both creativity and innovation. This is particularly important, Allen argued, because "the art world is already accepting the use of AI," with AI being integrated into popular tools like Photoshop.

As AI features become more widely integrated into artist tools, "people might not even know that they're using AI-assisted tools in their works," Allen told Ars.

Allen acknowledged that there may be some situations where using AI can generate art undeserving of copyright protection. An example would be an image generator that generates its own prompts to create images without human intervention, he suggested. But by failing to recognize more nuance, the Copyright Office is already "behind the times," Allen's appeal said.

Walsh acknowledged that AI-assisted artists have good reason to feel frustrated when their works aren't considered original when even casual photographs of things that exist in nature that probably shouldn't be copyrighted are treated as human authorship. But he expects that "we are going to see a lot of art that involves AI getting copyrighted," as artists learn to make simple tweaks to ensure ownership.

"It really is this narrower circumstance where the AI is final decider of what the thing looks like where the rule applies that it's not copyrightable because it's not a work of human authorship," Walsh said.

Because it's so easy to alter an AI-generated image into something copyrightable, Walsh predicts that copyright trolls will start threatening people who use AI images with huge fines in the hopes of profiting off the confusion over when AI art can be copyrighted.

"What I suspect is actually going to happen is [AI-generated] images are going to get registered that shouldn't, and then the burden is going to be placed on people who get threatened to see if they can figure" out if the image use is lawful or not, Walsh said. Perhaps one day there will be reliable AI checkers, Walsh said, making it easier to detect those trolls, but it could cost a hundred thousand dollars to prove that the AI checker was right.

Walsh said if she was a copyright troll looking to capitalize on AI art copyright confusion, she would "look to see if anyone has published anything that's similar to your stable of copyrighted works, and then you send them a demand letter and maybe you only ask for 1,000 or 5,000 bucks, and we've got a whole new world of copyright trolling because it's really cheap and it's really easy to do at scale."

"I bet there is going to be AI-generated stuff that gets through and gets registered, and if I were the evil troll, I would never go to trial," Walsh said. "I'd send a letter that is worded so that it doesn't quite create declaratory judgment jurisdiction"… "and if they get lawyers, I just go away and then harass the next bevy of people who are trying to publish art on the Internet."

Everyone knows the author but the Copyright Office

Since his copyright registration was denied, Allen has seen "Théâtre D'opéra Spatial" sold on Etsy and widely shared by other artists mocking his powerlessness in the situation. As the image went viral and his attempts to register the work were repeatedly denied, Allen joked to Ars that it felt like "everyone knows who made it except the Copyright Office."

Walsh joins many artists who are more urgently concerned about AI image generators stealing their works or copying their styles to water down the entire art market. For those artists, whom Walsh noted are confronting AI systems "reducing the value of labor and increasing inequality," AI has become an enemy rather than a beloved tool, as it is for Allen, who uses AI tools daily in his work.

While most of the "vitriol" that Allen has experienced since his work went viral seemed to come from the art community, Allen told Ars that he has also met with artists waiting to see how his appeal plays out and quietly worried about ownership of their own AI-assisted works.

Without any rights to "Théâtre D'opéra Spatial," Allen told Ars that he's lost significant revenue, feeling pressured to lower his licensing fees by about 75 percent. That price erosion "adversely affects the market value" of all his art, Allen said. He's now gathering donations on his site to raise funds to cover costs of his legal fight.

Most of the support he's received, he said, has come from tech companies in Silicon Valley, where insiders have claimed that his work shines as a glowing example of how advanced AI image generation has become. And the NFT marketplace OpenSea even helped facilitate takedowns when "people were trying to create NFTs" of his now-infamous work.

But Walsh told Ars that it's important for the Copyright Office to "be really vigilant against the registration of works that can be sort of rapidly, automatically generated, and the rule against AI requiring there to be a human element of creativity is both what the law says and [is] also helpful for restricting that" copyright troll threat.

Perhaps pressured by artists like Allen arguing for more copyrights, the Copyright Office could decide to "leave it to defendants to argue that something shouldn't be copyrighted," as the Office does with photographers, Walsh said.

That would seemingly be a preferred path for Allen, who has proven unafraid of litigating these questions. He's hoping his appeal can reverse the seeming precedent set by his initial denial of copyright by proving that an AI prompt is human authorship when the artist precisely crafts the prompt to conjure an image that otherwise only exists in their imagination.

Because when Allen looks at today's world, where AI gets all the credit for creating something he sees as unique, he thinks, "that's not the society that I want to live in," he said.

"I want to take control and have authority over the works that I create," Allen told Ars, referencing "Occam's razor" by asking "if the user sat down with the intent to create something and then did so using a machine or a device, it's just logical to assume that they are the author and give them credit and control over that work. What's the problem here?"