Jason M. Allen, the “artist” infamously known for winning an art contest with AI-generated artwork, sued the U.S. copyright office over their decision to reject his petition for copyright protection for the award-winning artwork.
The artwork, “Théâtre d’Opéra Spatial,” became controversial after it won the Colorado State Fair’s art competition in 2022. Allen created the artwork with the generative-AI image creator Midjourney.
Allen claimed that the rejection of the artwork’s copyright protection gave him “no recourse against others who are blatantly and repeatedly stealing” the AI-generated artwork. He claimed that he lost millions of dollars over the lack of credit.
Allen pushed the idea that he has authorship over the image due to the concept being his idea. The artist reiterated that he used Midjounrey only as “a tool” to create the work. The lawsuit claims that the AI-generated artwork underwent 624 iterations, with hundreds of different prompts. He estimated that he did over 110 hours fine-tuning the prompt to generate what he wanted.
“Through 624 iterations, he noted the results produced by each word and its placement within the prompt,” the lawsuit claimed. “By studying the AI’s behavior, he learned when Midjourney focused on specific parts of his instructions and when it ignored them altogether.”
The Copyright Review Board, in their decision to reject Allen’s copyright claim, said that he refused to disclaim the portions of the work generated by AI. While they recognized his contributions and edits to the piece, he tried to claim the portions of the AI-generated artwork made by Midjourney, and rejected the request and his multiple appeals.
“The Office accepted Mr. Allen’s claim that human-authored ‘visual edits’ made with Adobe Photoshop contained a sufficient amount of original authorship to be registered,” the Board said. “However, the Office explained that the features generated by Midjourney and Gigapixel AI must be excluded as non-human authorship. Because Mr. Allen sought to register the entire work and refused to disclaim the portions attributable to AI, the Office could not register the claim.”
The United States government remains consistent in refusing to grant copyright for AI-generated artwork. Their official AI policy requires humans to be the author of the piece. They do not consider crafting a prompt for a machine to create the output “authorship.”
“For example, when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the ‘traditional elements of authorship’ are determined and executed by the technology—not the human user,” the guide said.
“[Users do not exercise ultimate creative control over how such systems interpret prompts and generate material,” they continued. “Instead, these prompts function more like instructions to a commissioned artist—they identify what the prompter wishes to have depicted, but the machine determines how those instructions are implemented in its output.”
Allen’s win at the time was controversial. Many recoiled at the win, largely due to the unethical way generative AI trains their apps on scrapped images from other people’s work.
Allen submitted “Théâtre d’Opéra Spatial” in the “digital art/digitally manipulated photography” category. He also submitted two other space-themed works. He disclosed to the fair the involvement of AI to the work. The fair found that Midjourney fit into the rules of digital technology used to craft artworks. The judges did not know the work was AI-generated, but said it would have won regardless.
Artists and online users found the win distasteful, especially while many artists sue AI companies for lost income and copyright violations in scrapping their works and styles. At the time, Allen was unapologetic about his win, or concerns over the unethicalness of the technology. “Art is dead, dude. It’s over. A.I. won. Humans lost,” he said at the time.
AI-generated images sourced from Wikimedia Commons under public domain.
Related reading: Artists Pivot to Cara as Anti-AI Sentiment Grows Among Artists
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