Award-winning AI artist vows appealing copyright rejection up to Supreme Court
Kaelan Deese
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An artist who won an award for artwork he created using artificial intelligence software wants the Supreme Court to hear his case in a broad effort to provide legal protections for AI works.
Jason Allen, a Colorado-based video game designer who was the victor of the Colorado State Fair last year for his AI-generated work titled Space Opera Theatre, was denied an attempt to establish sole ownership of his work created with the AI software Midjourney by the U.S. Copyright Office.
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In response to Allen’s initial request, the Copyright Office rejected the claim because the “deposit contains no human authorship.”
“The U.S. Copyright Office denied my copyright registration [for the image], so after some back-and-forth, I hired an attorney and am appealing,” Allen told the Denver Post. “We’re ready to go all the way to the Supreme Court.”
Since his denial, Allen has used his notoriety for winning the state fair award to promote his protest called COVER, which stands for Copyright Obstruction Violates Expressive Rights. He contends that his appeal of the Copyright Office’s denial is the first of such kind pertaining to AI art.
Both Allen and a Denver-based trademark lawyer, Tamara Pester, argue that “the use of AI in the creation of art is a legitimate form of artistic expression” and say AI works deserve the same protections as traditional art forms.
The use of software to generate images with depth and detail within mere seconds has awakened a debate as to whether such works constitute real art, along with even deeper legal questions about whether such images could be legally copyrighted.
AI-generated creations are made by allowing software to be “trained” on billions of images. Emerging lawsuits over such technologies aim to define whether that use is legally permitted.
In September, Getty Images banned the upload and sale of illustrations made using tools including DALL-E, Midjourney, and Stable Diffusion. Getty also sued a company known as Stability AI earlier this year, alleging it misused more than 12 million photos owned by Getty to train its software.
“There are real concerns with respect to the copyright of outputs from these models and unaddressed rights issues with respect to the imagery, the image metadata, and those individuals contained within the imagery,” Getty CEO Craig Peters said in response to removing AI-generated work from the platform.
While the Supreme Court has yet to encounter its first lawsuit on the merits of the legality surrounding emerging AI technologies, the subject came up earlier this year in oral arguments surrounding the scope of the Communications Decency Act’s Section 230.
Justice Neil Gorsuch suggested that the legal protections that cover social networks from lawsuits over user-generated content may not apply to works generated by AI, such as OpenAI’s ChatGPT, which has been compared to an elaborate writing assistant.
“Artificial intelligence generates poetry,” Gorsuch said during oral arguments. “It generates polemics today that would be content that goes beyond picking, choosing, analyzing, or digesting content. And that is not protected. Let’s assume that’s right. Then the question becomes, what do we do about recommendations?”
Some artists have vehemently pushed back on AI-generated works, which is a point of frustration for Allen, who says they “pretend it’s this massive doomsday event.”
But other figures in the art world have kept an open mind about what variables determine whether something is or isn’t art.
Cody Borst, who has worked on elaborate physical art installations at Meow Wolf in Denver, said there are still “so many unanswered questions about ethics, legality, and societal impact that will no doubt be the focus of conversations for the months to come.”
“The rate at which technology is evolving is rapidly exceeding our understanding of the impact it could have,” Borst added.
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In response to skepticism that AI-generated works count as real art, Allen wrote in a social media post on Tuesday that “photography went through the same type of criticism in the 1800s.”
Allen said: “Copyright law focuses on the origin of the idea expressed, not the tools used in the creation process. So if AI isn’t a tool, what is it?”