US copyright office rejects AI generated image

Photo Credit: Steve Johnson

The US Copyright Office has rejected copyright protection for yet another image created using artificial intelligence.

An award-winning image created by artist Jason M. Allen with the generative AI platform Midjourney is the latest to be denied copyright protection by the US Copyright Office. The office said on Tuesday, September 5, that Allen’s image, the science fiction-themed “Theatre D’opera Spatial,” was not entitled to copyright protection due to the AI-generated elements of the work.

Allen told the US Copyright Office that he “input numerous revisions and text prompts at least 624 times to arrive at the initial version of the image” using Midjourney before altering it with Adobe Photoshop. The office asked Allen to disclaim the parts of the image generated by Midjourney in order to be eligible for copyright protection, but Allen declined. The office, therefore, rejected his application.

The Copyright Review Board at the US Copyright Office affirmed that decision on the grounds that the image as a whole was not copyrightable due to containing “more than a minimal amount” of AI-generated material.

Allen argued that his “creative input into Midjourney, which included ‘entering a series of prompts, adjusting the scene, selecting portions to focus on, and dictating the tone of the image’ is on part with that expressed by other types of artists and capable of copyright protection.”

He further asserted that the fair use doctrine would allow for registration of the work in allowing “for transformative uses of copyrighted material,” regardless of whether the underlying AI-generated work is eligible for copyright protection, arguing that the office should consider the work as the sum of its parts.

Under the Copyright Act, the office registers “original works of authorship fixed in any tangible medium of expression.” Courts have interpreted the phrase “works of authorship” to require human creation of the work and have uniformly rejected attempts to seek copyright protection for “the creations of non-humans.”

Allen also argued that denying copyrights for AI-created material leaves a “void of ownership troubling to creators,” but the office rejected this argument too.

“If this stands, it is going to create more problems than it solves,” said Allen. “This is going to create new and creative problems for the copyright office in ways we can’t even speculate yet.”

Representatives for the Midjourney platform have not responded to media requests for a comment.