Artist Appeals Copyright Denial For Prize-Winning AI-Generated Work

An anonymous reader quotes a report from Ars Technica: Jason Allen-a synthetic media artist whose Midjourney-generated work "Theatre D'opera 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 (PDF) 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.

Re:

[usedtobestine]

How would he copyright the state of Midjourney at the time he issued the prompt?

No copyright to grant

[will4]

Here's the quandary:

If the artist gets a copyright on this work, then will it be profitable to generate millions of random images based on computer generated prompts and claim copyright on all of them?

Then in the future, use image matching search to find any near copies of those generated images and file a lawsuit for copyright infringement?

The scale currently is

- No AI - artist does the entire work on her own
- Minimal AI - The artist asks for sample line, charcoal, crayon, etc. primitive images from an AI and then creates her own image using none of the AI images
- Some AI - The artist generates small parts of the background of an image using AI, such as less than 5% of the total image's area
- ...
- Major AI - The artist generates an AI images, prints it out and then paints over parts of it
- Total AI - The artist generates an AI image using only AI prompts

The question is at which level will a copyright be granted by the copyright office.

Prior legal statutes in a similar vein

[will4]

The copyright system will need a large restructuring if computer generated images, music, books, poems, songs, product designs, etc. are allowed to have a copyright. The issue is that with an AI, a solo person could generate hundreds of thousands of variations on a theme and claim copyright on them all.

Suggest: Re-introduce a copyright registration fee and require copyright to be filed with the copyright office to receive the legal benefit of copyright. Require every 10 years, a small fee $10 adjusted upw

Re:

[chuckugly]

Sounds a lot like arguing photographs shouldn't be copyrightable.

Photographs are not computer generated

[will4]

Physical film base photographs and digital photographs are not computer generated.

https://jcms-journal.com/artic... [jcms-journal.com]

The Public Domain vs. the Museum: The Limits of Copyright and Reproductions of Two-dimensional Works of Art

and

https://www.theartnewspaper.co... [theartnewspaper.com]

"A recent judgement on copyright in the Court of Appeal (20 November) heralds the end of UK museums charging fees to reproduce historic artworks. In fact, it suggests museums have been mis-selling “image licences” for over a decade. For those

Re: No copyright to grant

[phantomfive]

Based on previous rulings, I would expect that the human-created parts are copyrightable, but the computer generated parts are not copyrightable. The confusion is figuring out what parts are generated by what, since building the art is more than writing a prompt, but less than writing it from scratch.

Re:

[toutankh]

And there you have it. If the artist can't reproduce the art, is that art really from that artist?

Re:

[rolfwind]

How would Jackson Pollack fit in?

Re:

[toutankh]

Assuming you mean Pollock, there are a few key differences. First, the question of authorship was never a question with any of his art. Second, he was able to reproduce similar if not identical pieces of art. Third, a significant part of his art is his process, which certainly came from him.

Is this theft?

[rickkw]

Artwork produced by generative AI is done by ingesting a large body of (presumably) original work, and the regurgitated back. It is NOT original work. If copyright is to be granted to an AI generated work, it should be granted to each of the artists of the original work.

Re:

[chuckugly]

Because no artist ever studied the work that preceded them before creating their art. Right?

Re:

[rolfwind]

Yeah, I think the human mind works the same way. Are you gonna claim that anybody that went through school owes infinite copyright to previous generation starting with use of the alphabet and number system?

The Copyright Office is being inconsistent

[Indiana Joe]

It claims (from TFA) that the prompt used is a copyrightable work. Midjourney's output is clearly a derivative work based on a copyrightable original. How can that not be copyrightable itself? The claim could be made (in this case) that Midjourney modifies the original prompt in ways that are hidden from the user and the resulting work is a collaboration. Fair enough. However, it would not be broadly applicable to all synthetic images. If I use a local installation of Automatic1111 or ComfyUI, I have compl

Prompt Engineering

[daveron]

This sounds to me like 'prompt engineer' (god, i hate that term so much. did these prompters go to an abet accredited institution? did they pass any exams or have any training whatsoever?) are trying to claim copyright over others hard work, (artists, authors, computer scientists, and actual computer engineers who earned their degrees and did lots of hard math to create the ai whose buttons these prompters are mashing blindly.

We need less

[MpVpRb]

IP laws, not more

Artist?

[Daemonik]

Can we all please stop referring to people who use AI tools as artists? If your work is wholly AI generated and you added nothing but some prompts, you are not Da Vinci. I don't know if you should even be considered as equal to someone who colors inbetween the lines of a diner menu with those free crayons.

Re:

[aaarrrgggh]

What if you created artwork from a mathematical formula, or used one to modify a basic image to make it visually interesting? What if you use a CNC machine or 3D printer to make a sculpture?

where is the threshold?

[nicubunu]

If I use some AI tool to replace the background on one of my images, I still own the full copyright. If I use some AI to generate a full image from my prompt and then do some post-processing, I own no copyright. Can someone define the exact threshold where I lose the rights? To me, the distinction is very vague.