AI artist who was denied IP claim says it’s ‘antithetical to spirit of copyright’
Kaelan Deese
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A Colorado-based artist who was denied intellectual property rights for works he created using artificial intelligence-powered image-generating software says his rejection is unjust and is vowing legal recourse.
Jason Allen, 39, is a game designer who was the victor of the Colorado State Fair last year for his AI-generated work titled “Space Opera Theatre.” He later sought to gain legal intellectual property rights for his work created with the AI software Midjourney but was denied his request by the U.S. Copyright Office.
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Midjourney is a semipremium software that allows users to submit written “prompts” to render unique images pulled from data sets of billions of images scraped from the internet. Allen says he paid for the software, which lets him keep his prompts hidden from the general public.
The copyright office “asked for the prompt,” Allen told the Washington Examiner, noting there was “a back and forth between us and the copyright office three or four times” before his submission was rejected because the “deposit contain[ed] no human authorship.” Allen contends that he should not have to share the prompt because he believes “it’s a form of intellectual property.”
“It’s kind of antithetical to the spirit of copyright. … Copyright law focuses on the origin of the idea expressed, not on the tools,” Allen said, making a comparison to artists who file copyright claims over works that use image editing software. “People don’t typically ask those individuals, ‘So did you let them know that you used Photoshop when you submitted this piece?'” Allen said.
While Allen said his attorney, Tamara Pester, believes he is “in the right” and said he’s willing to argue his case all the way up to the Supreme Court if need be, a clear legal answer to this dispute is murky and has invoked conflicting opinions from major interest groups.
Images created in Midjourney are similar to other visual creations made in emerging programs such as DALL-E, another image-generating software, and ChatGPT, which allows users to create prompts to generate unique text-based responses.
Matt Perault, director of the Center on Technology Policy at the University of North Carolina at Chapel Hill, wrote for Lawfare in February that he doesn’t believe Section 230 of the Communications Decency Act protects generations created by ChatGPT. Section 230 is the law numerous legal scholars cite as the basis for enabling online platforms to host speech from users without the threat of legal liability.
Conversely, there’s ample support from attorneys specializing in unanswered technological legal questions who say AI generations can be protected under Section 230. Jess Miers, legal advocacy counsel at the Chamber of Progress, said AI services like ChatGPT would likely be protected, citing examples such as Section 230 allowing Google’s auto-fill function for searches.
Allen’s dispute becomes more perplexing given recent updates provided by the U.S. Copyright Office. Earlier this month, the office declared that some artwork generated by AI could be trademarked but noted the process doesn’t come without certain limitations.
“Based on the Office’s understanding of the generative AI technologies currently available, users do not exercise ultimate creative control over how such systems interpret prompts and generate material,” the office said. “Instead, these prompts function more like instructions to a commissioned artist.” For example, a user could ask the image generator DALL-E to create an image resembling a Vincent Van Gogh painting but would not be allowed to copyright it because it is derivative of Van Gogh.
Although Allen contends that copyright law should focus on the “origin of the idea,” the website Copyright.gov includes a citation to U.S. Code clarifying this matter, stating, “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system … regardless of the form in which it is described, explained, illustrated, or embodied in such work.”
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Allen is currently awaiting a response to his first request for reconsideration after his initial request was denied.
“Denying copyright protection based on the tool used could set a discriminatory precedent and undermine the intent of copyright protection, which is to safeguard the expression of creative ideas originating from human authors,” Allen said.