AI Artist Challenges Copyright Office Denial of AI-Assisted Work

Jason Allen’s work, “Théâtre D’opéra Spatial.” 

In a Motion for Summary Judgment filed earlier this weekwith the U.S. District Court for the District of Colorado, AI artist Jason M. Allen requested that the court overturn the Copyright Office’s refusal to register his award-winning image “Théâtre D’opéra Spatial,” created with the AI system Midjourney.

The U.S. Copyright Office Review Board previously denied registration for Allen’s artwork. The Review Board asserted that when AI produces complex works solely from a human prompt, the “traditional elements of authorship” are executed through the technology and not by the human user.

Allen contends he fulfills authorship requirements under the Copyright Act and established legal precedent. Copyright protection, outlined in 17 U.S.C. § 102(a), necessitates originality and a fixed medium of expression. The complaint argues that the fixed medium of expression is not in dispute, but the Copyright Office’s denial originates from a perceived absence of “traditional elements of authorship.”

‘Minimal Level of Creativity’

For over a century, copyright law has interpreted the originality necessary for authorship and copyright with a remarkably low threshold for creative contribution, says Allen’s motion. The contemporary standard, established in Feist Publications, Inc. v. Rural Telephone Service Co., Inc., asserts that copyright subsists in any work exhibiting a “spark of creativity” or a “minimal level of creativity.”

The Feist Court decisively stated that “‘the requisite level of creativity is extremely low; even a slight amount will suffice.”’ The requisite extended compilations of uncopyrightable elements, where the author can select or arrange the elements in a minimally creative way. The complaint highlights that the Feist case “illustrates the extreme standard required to fail to contribute even a ‘minimal level of creativity.’”

Machine Intervention and Authorship: The Sarony Precedent

Allen claims his argument aligns with the Supreme Court case Burrow-Giles Lithographic Co. v. Sarony, which addressed the copyrightability of photographs. In the Sarony case, the Court affirmed that Napoleon Sarony, a photographer, was the author of the picture, despite using a camera and employing human assistants. The Court’s focus was on Sarony’s creative decisions concerning disposition, arrangement, or representation, but ultimately concluded that the desired elements originated from Sarony.

The motion underscores that the Feist and Sarony cases establish a low bar and do not require technological or utilization innovation to establish authorship when employed for creativity, as Allen is the author of a protectable work. Allen asserts that “[t]here is no argument by the Copyright Office that the Work is copied from another work, and it would be impossible to describe the Work as ‘garden variety’—the Work literally won a state art competition.”

Defining Authorship

Allen’s brief asserts that the Supreme Court and Federal Courts’ definition of “author” directly embodies Allen. An author is broadly defined as a person “to whom anything owes its origin; originator; maker; one who completes a work.” Similarly, “writings” may be liberally construed to include “all forms…by which the ideas in the mind of the author are given visible expression.”

Since Sarony, courts have consistently expanded, rather than narrowed, the scope of copyright protection, maintaining that “practically anything novel can be copyrighted” with even a “faint trace of originality.” Allen contends that his extensive iterative prompting, involving over 600 prompts to realize a specific mental conception, unequivocally demonstrates his creative decisions and intentionality, thereby easily surpassing the low threshold for authorship.

The brief cites the Copyright Office’s own acknowledgment of Allen’s contributions, ‘“[h]e [] entered prompts that described the ‘genre and category’ for the image, ‘the tone of the piece,’ ‘a description of how lifelike [Mr. Allen] wanted the piece to appear,’ ‘how colors were used,’ and ‘what style/era the artwork should depict.’”

Challenge to Established Law

Allen’s brief argues that the Copyright Office’s test for copyrightability directly contravenes established legal principles. Itasserts that the Copyright Office’s test imposes restrictions based on methods of creation, an approach explicitly rejected by the Supreme Court. The motion claims that the Copyright Office is attempting to “police a creator’s methods,” which contradicts established legal precedent. Furthermore, it emphasizes that “unintentional and unforeseen results are a cornerstone of copyrightable works and the creative process,” regardless of the level of technological involvement.

Allen alleges that the Copyright Office’s policy disadvantages artists who utilize AI-driven tools and that if applied consistently, this policy would uniformly invalidate copyright for numerous registered works. The brief underscores that the Copyright Act does not restrict the tools or methods of creation an author can employ to create a work, and denying copyright to AI-assisted creations would be inconsistent with the Act’s overarching purpose.

Applying the Copyright Office’s Own Criteria

Even when adhering to the Copyright Office’s own criteria, Allen argues that his work should be deemed copyrightable because his creative process aligns with the Copyright Office’s stated requirements of authorship. It emphasizes that the Copyright Office acknowledged Allen’s input concerning the image’s genre, tone, desired appearance, color usage, and style. The brief reiterates that Allen’s process involved “numerous revisions and text prompts at least 624 times” to achieve his specific artistic vision, thereby demonstrating substantial creative control.

Unconstitutional Limits on Authorship

Ultimately, Allen asserts that the Copyright Office’s test imposes unconstitutional limitations on the concept of authorship and suggests that by denying copyright based on the use of AI, the Copyright Office is exceeding its authority and establishing a standard that is unsupported by the Constitution.