Why An Award-Winning AI Artwork Is Not Copyrightable (At Least For Now)

Remember that AI artwork that won first prize at a Colorado State Fair art competition, sparking a debate around AI usage that went viral?  According to the U.S. Copyright Office, the work cannot be copyrighted, at least not without disclaiming those portions made through the use of AI.  We cover the copyright decision below.

Background

Jason Allen created a two-dimensional artwork entitled Théâtre D’opéra Spatial (the “Work”).  In 2022, he filed a copyright registration for the Work.  Though he did not disclose in his application that he had used AI to create the Work, the Copyright Office knew that Allen had used Midjourney, the text-to-picture AI tool, due to all the publicity the Work received after it won a prize at the 2022 Colorado State Fair.  Thus, the Copyright Office examiner assigned to Allen’s copyright application asked Allen for more information about his use of Midjourney in the creation of the Work. 

In response, Allen explained his process, stating that he had “input numerous revisions and text prompts at least 624 times to arrive at the initial version of the image.”  Then, he used Adobe Photoshop to remove flaws and create new visual content and used Gigapixel AI to “upscale” the image, increasing its resolution and size.  Following these disclosures, the examiner asked Allen to exclude from his copyright claim the elements of the Work generated by Midjourney.  Allen refused and reasserted his claim to copyright in the features of the Work produced by Midjourney.  The Copyright Office refused to register the Work because it included “inextricably merged, inseparable contributions” from Allen and Midjourney.

In January 2023, Allen asked the Copyright Office to reconsider its refusal to register the Work.  In response, the Copyright Office again refused to register the Work. 

In July 2023, Allen asked the Copyright Office to reconsider for a second time its refusal to register the Work. On September 5, 2023, the Copyright Office Review Board issued its decision refusing to register the Work because Allen failed to disclaim the Work’s AI-generated material.

In its decision, the Board considered a threshold question:  Does the Work contain an amount of AI-generated material “that is more than de minimis and thus must be disclaimed”?  Yes, said the Board.  The Midjourney image, “which remains in substantial form in the final Work, is not the product of human authorship.” 

What about the hundreds of prompts Allen added into Midjourney?  Per the Board, the AI tool, not the human, determines the particular expressive output, and thus there is no human authorship as required by copyright in the image output.  The Board acknowledged that some prompts may be sufficiently creative to be registered as literary works.  But that would not amount to creative control over the claimed elements in any image generated by inputting the text prompt into an AI tool.  In any case, Allen refused to disclose any specific prompts to the Copyright Office on the ground that they were “confidential,” and thus the Board could not consider whether the prompts were copyrightable.

The Board did not decide whether Allen’s adjustments made in Photoshop “would be copyrightable on their own because the Board lack[ed] sufficient information to make that determination.”  (Allen used Photoshop to erase off-looking AI elements, and paint in those deleted areas with “content aware tools” before using other Photoshop features such as brush tools, and blur and sharpening tools.  As to Allen’s use of Gigapixel, the Board did not consider it because Allen conceded that Gigapixel did not add any new, original elements into the image.

Take-Away Point

The decision constitutes the Copyright Office’s final agency action regarding Allen’s copyright application. Allen can, if he wishes, seek judicial review of the decision like AI creator Stephen Thaler did – more on that here.  The decision does not preclude Allen from filing a new application to register the Work in which he disclaims the Work’s AI-generated material.  Per the Board, were Allen willing to do so, his new application should “explain why his modifications to the image arise to the level of copyrightable authorship.”