The US Copyright Office (CO) Review Board rejected a request to register artwork partially generated by artificial intelligence (AI) because the work contains more than a de minimis amount of content generated by AI and the applicant was unwilling to disclaim the AI-generated material. Second Request for Reconsideration for Refusal to Register Théâtre D’opéra Spatial (Copyright Review Board Sept. 5, 2023) (S. Wilson., Gen. Counsel; M. Strong, Associate Reg. of Copyrights; J. Rubel Asst. Gen. Counsel).
In 2022, Jason Allen filed an application to register a copyright for a work named “Théâtre D’opéra Spatial,” reproduced below.
The artwork garnered national attention in 2022 for being the first AI-generated image to win the Colorado State Fair’s annual fine art competition. The examiner assigned to the application requested information about Allen’s use of Midjourney, a text-to-picture AI service, in the creation of the work. Allen explained that he “input numerous revisions and text prompts at least 624 times to arrive at the initial version of the image.” He went on to state that after Midjourney created the initial version of the work, 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. As a result of these disclosures, the examiner requested that the features of the work generated by Midjourney be excluded from the copyright claim. Allen declined to exclude the AI-generated portions. As a result, the CO refused to register the claim because the deposit for the work did not “fix only [Mr. Allen’s] alleged authorship” but instead included “inextricably merged, inseparable contributions” from both Allen and Midjourney. Allen asked the CO to reconsider the denial.
The CO upheld the denial of registration, finding that the work contained more than a de minimis amount of AI-generated content, which must be disclaimed in a registration application. The CO explained that when analyzing AI-generated material, it must determine when a human user can be considered the “creator” of AI-generated output. If all of a work’s “traditional elements of authorship” were produced by a machine, the work lacks human authorship and the CO will not register it. If, however, a work containing AI-generated material also contains sufficient human authorship to support a claim to copyright, then the CO will register the human’s contributions.
Applying these principles to the work, the CO analyzed the circumstances of its creation, including Allen’s use of an AI tool. Allen argued that his use of Midjourney allowed him to claim authorship of the image generated by the service because he provided “creative input” when he “entered a series of prompts, adjusted the scene, selected portions to focus on, and dictated the tone of the image.” The CO disagreed, finding that these actions do not make Allen the author of the Midjourney-created image because his sole contribution was inputting the text prompt that produced it.
The CO analyzed Midjourney’s technical process in reaching its conclusion. The CO explained that the steps in generating the Midjourney image are ultimately dependent on how the Midjourney system processed Allen’s prompts. The CO found that “Midjourney does not interpret prompts as specific instructions to create a particular expressive result,” because “Midjourney does not understand grammar, sentence structure, or words like humans.” Since Midjourney does not treat text prompts as direct instructions, users may need to attempt hundreds of iterations before landing upon an image they find satisfactory. Citing its March 2023 Policy Statement, the CO explained that “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.” Thus, the CO found that the initial image was generated by technology, not Allen. Because Allen refused to limit his claim to exclude the non-human authorship elements from the work, the CO maintained its refusal to register.
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