IP Law Daily, COPYRIGHT—D. Colo.: Copyright Office stands by its refusal to register an AI-assisted work, (Jan 21, 2026)

By Matthew Hersh, J.D.

The putative author’s creative edits to an AI-generated work could be copyrighted, but not the overall image itself.

Permitting a digital artist to register a copyright in an artificial intelligence-assisted work of art would have required the Copyright Office to contravene the requirements of the Copyright Act because the application “claimed material that he did not author and which is not copyrightable,” the Office has stated in a federal court filing. The Office, in urging the federal district court for Colorado to deny the digital artist’s demand that the Office permit the registration of the copyright in the work, emphasized that the prompts that the artist made in order to generate the work were made up only of high-level concepts and ideas that could not make the resulting output worthy of protection (Allen v. Perlmutter, No. 1:24-cv-02665-WJM (D. Colo. Jan. 16, 2026)).

The lawsuit involves a dispute between a digital artist and the Copyright Office over a work of art entitled Théâtre D'opéra Spatial. The work, as described by its (at least putative) creator Jason Allen, is “set [on a] stage in a grand theater, with an audience watching intently, overlooking a large circular window through which the vast expanse of the outer world is visible, adding an otherworldly ambiance to the performance.” (The work is viewable here.) The work, created with the assistance of AI program Midjourney, was entered into—and won—the “digital art/digitally manipulated photography” category of the 2022 Colorado State Fair (enraging other artists in the process). Allen himself may be as famous—or perhaps infamous—as his creation. “Art is dead, dude,” he told the New York Times after winning the contest. “It’s over. A.I. won. Humans lost.”

Allen’s court filings described the creation of the work in detail. According to Allen’s description, he entered text prompts to Midjourney hundreds of times. Each time, Midjourney generated a 2x2 grid of potential images. Allen then chose one with Midjourney’s “variations” feature, which generates four new images similar to the chosen image’s overall style and composition. Of those, he selected one and made certain edits to it, including increasing its resolution with Midjourney’s “Upscaler” feature, using Photoshop to adjust various cosmetic details, and then upscaling it a second time with Gigapixel AI in order to arrive at the final result.

Allen may have had luck with his image at the state fair, but he was stymied by the Copyright Office. Not long after winning the state fair, he sought to register a copyright in the work. A copyright examiner denied the claim, and the Copyright Review Board affirmed. Under Copyright Office guidance, where a work contains a combination of original human authorship as well as AI-generated material, the component made up of human authorship can be registered—but the overall work can be registered only if the AI-generated content was “de minimis” in comparison with the artist’s contribution. Because the AI component of the work was more than de minimis here, the Board found, denial of registration was appropriate.

Allen, miffed, brought a lawsuit against the Copyright Office in the Colorado federal district court. After discovery, Allen moved for summary judgment, leading to this response by the Copyright Office.

Registration of AI-assisted work. The Copyright Office, reaffirming its longstanding views on AI-created works, urged the court to deny summary judgment to Allen. Under longstanding court precedent and Copyright Office principles, the Office explained, copyright is available only to works of “human” authorship. Allen’s multiple prompts to Midjourney, as well as his post-prompting edits, may well have been the work of human authorship, the Office explained—but the underlying generation of the images by Midjourney was not. As a result, the Office explained, Allen could not obtain a registration for a copyright in the entire image.

The fundamental problem that Allen faced, the Office explained, was that he contributed only uncopyrightable ideas, not copyrightable expression, to the creation of the work. Allen’s “principal interaction with Midjourney,” the Office explained, “was inputting text prompts.” While these prompts were not part of the record, the Office noted, based on the description he provided, the prompts related to the “overall subject,” the “big picture,” the “type of scene,” the “genre and category,” the “tone,” how “lifelike” the image should be, how “colors were [to be] used,” the “composition,” how to “‘finish’ the piece,” and the “style/era.” These prompts amount to ideas, the Office explained—not to authorship.

Nor did the amount of those prompts make a difference to the outcome. Allen emphasized in his briefing that he revised and entered text prompts at least 624 times. “But repeatedly revising prompts does not amount to authorship,” the Office noted. Indeed, the Office noted, “the time and effort involved in creating a work is irrelevant in analyzing what aspects are eligible for copyright.” For example, the Office explained, an art collector commissioning a work from an artist could not claim to be the author of the resulting painting simply because the collector gave general directions to the artist, supplied ideas, and approved the result. “Conceiving and communicating general ideas—no matter the level of effort involved—does not constitute authorship of an expressive work,” the Office emphasized.

Nor could the creative nature of Allen’s prompts, the Office noted, help his case. Allen argued that his prompts included, among other things, “certain professional artistic terms which direct the tone of the piece” and “terms about what style/era the artwork should depict.” But these and other prompts did not mean that Allen “expressed his own idea,” the Office emphasized. Rather, the Office reasoned, Allen “conflate[d] the idea of a particular tone or style (e.g., ‘Renaissance art’) with the expression of that tone or style; overstate[d] the degree of control afforded by text prompting, and ignore[d] that all or most of the expression in Midjourney-generated outputs is attributable to random noise and the Midjourney model.”

Finally, the Office noted, its conclusion was supported by Midjourney’s own documentation itself. That documentation demonstrated, the Office noted, “that text prompting could only loosely influence the generation of visual images; it did not function like instructions followed by an amanuensis or assistant.” Indeed, the Office noted, that documentation directs users to “concentrate on the main concepts” rather than making long or detailed entries. Midjourney further warns, the Office noted, that attempts at controlling outputs can even have paradoxical effects, explaining that “[i]f you ask for a party with ‘no cake,’ your image will probably include a cake.” In some cases, the Office noted, Midjourney users were advised that even specific instructions may not be followed and “anything you leave out will be randomized.” The result of Midjourney’s output, the Office concluded, could only be the result of human ideas and concepts—not human expression.

Although the Office defended its refusal to allow the registration of the work, it also made clear that all was not lost for Allen. As the Office explained, although the underlying images generated by AI could not be protected, Allen may well have added “new creative authorship” in the form of his revisions to the final AI output. Should Allen have limited the claim to clarify that the registration would extend only to his “direct creative authorship in the image,” rather than the entire image, the Office emphasized, the Office would consider re-consideration of the registration determination.

The Case is No. 1:24-cv-02665-WJM.

Judge: Martinez, W.

Attorneys: Tamara S. Pester (Tamara S. Pester LLC) for Jason Allen. Jenna Elizabeth Munnelly, U.S. Department of Justice, for Shira Perlmutter.

Cases: Copyright TechnologyInternet ColoradoNews