IP Law Daily, COPYRIGHT NEWS: Is AI just a part of an artist’s toolkit, or does it have a mind of its own? A new lawsuit raises the issue, (Sep 30, 2024)

By Matthew Hersh, J.D.

An artist takes on the Copyright Office over its refusal to register AI-assisted art.

The Copyright Office’s refusal to register a work of visual art that was created with the assistance of artificial intelligence “fails to recognize the human creativity that is essential and inextricably intertwined with the creation of the work,” a new federal lawsuit asserts. The lawsuit is only the latest in a long-running dispute between artists who create AI-assisted works and the Office—and increasingly, the courts—who refuse to find that they are copyrightable (Allen v. Perlmutter, No. 1:24-cv-02665-SKC-KAS (D. Colo. filed Sept. 26, 2024)).

The lawsuit was brought by Jason Allen, an artist and the creator of a work entitled Théâtre D'opéra Spatial. The work, as the artist explains, 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 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.”

The artist’s boast may have been premature, however. Not long after winning the state fair, he submitted his work to the Copyright Office. 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. The AI component of the work was more than de minimis here, the Board found. To be sure, the Board acknowledged, the artist made 624 different separate prompts to Midjourney, refining the work as he went along. But “Midjourney [did] not interpret prompts as specific instructions to create a particular expressive result,” the Board noted. Thus, Allen’s prompts to Midjourney, while perhaps creative in any of themselves, did not control the output—it was AI that filled in the blanks.

The Board’s reasoning was wrong on many levels, the complaint asserts. The author’s painstaking efforts show just how much the resulting work—not just his own efforts—was a human creation. The author conducted “extensive testing of the outputs generated based on his prompts,” he claims—making painstaking changes to his input instructions until he reached the desired result. His work was analogous to that of a film director giving directions to a cameraman, he argued. The cameraman rarely gets it right in one take, he noted—it needs constant refinement by the director to get the right shot. “To put it into perspective,” the complaint noted, “the world record for the most takes of a movie scene is 148—nothing compared to 624.”

The complaint—which is really written more as a brief than a pleading—also alleges that Midjourney “did not engage in any creative selection or arrangement of the image elements.” Instead, the complaint asserts, “Midjourney, lacking independent creativity, did not generate the image on its own.” Rather, “the creative selection and arrangement of elements in the image were entirely directed by the [artist], who meticulously crafted the instructions.” As with established computer-aided design programs Gigapixel and Adobe Photoshop, the complaint noted, the AI only assisted him in creating the work. The Copyright Office has routinely registered works created with the assistance of those two tools, the complaint notes—so it should register this one as well.

Allen is not the first artist to bring a lawsuit against the Copyright Office over AI-related registrations. In August 2023, the District Court for the District of Columbia rejected a similar claim by inventor Stephen Thaler. The inventor’s appeal was argued two weeks ago in front a skeptical court of appeals.

Commentary. The complaint raises several interesting questions. One is whether the analogy to Gigapixel or Photoshop hold up. In this writer’s view, it will not. There is of course no question that the entries themselves are copyrightable—indeed, the Office offered to allow the artist to register those entries separately, but he declined. But could he register the result of those entries? The artist analogizes the use of Midjourney to the use of Gigapixel, Photoshop, or any other computer-aid design. (He also analogizes it at one point to a mathematician using a calculator.) But Gigapixel and Photoshop—to say nothing of calculators—return results that are based on fixed, unbending rules. Midjourney, by contrast, is by its nature constantly learning and evolving—as the word “intelligence” in artificial intelligence suggest—and thus capable of returning different results for the same queries at different phases of its development. A calculator does not have a mind of its own. AI, by definition, does.

And what of the analogy to a producer who gives direction to a cameraman? The analogy is closer, but also likely to fail, in this writer’s opinion. The basic problem here is that a cameraman is a human. If the cameraman’s own creative decisions are the reason why each take comes out differently, then each has contributed independently copyrightable material to the scene, making them—in theory—joint authors. (Though in practice work-for-hire agreements make that a moot point.) AI is not human, so it cannot be a joint author of anything. (As a side note, as anyone who has been on a movie set knows, most retakes are driven by the vicissitudes of actors, not by cameramen. That scene with the 148 takes was from The Shining, directed by Stanley Kubrick—a director known for the relentless way he drove his actors. One actor in that movie broke down in tears over Kubrick’s insistence on perfection, while the boy in the 148-take scene never acted again.).

The Case is No. 1:24-cv-02665-SKC-KAS.

Judge: Crews, S.

Attorneys: Tamara S. Pester (Tamara S. Pester LLC) for Jason Allen.

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