An award winning piece AI art cannot be copyrighted, the US Copyright Office has ruled. artwork, Theater d’Opera Local, was created by Matthew Allen and debuted at last year’s Colorado State Fair. Since then, the piece has been embroiled in a pre-confirmation copyright dispute. Now, the government agency has issued a third and final ruling: Allen’s work is not eligible for copyright.
Now, Allen plans to file a lawsuit against the US federal government. “I’m going to fight this like hell,” he says.
problem? Allen used the generative AI program Midjourney to create his entry, and copyright protection doesn’t extend to artificial intelligence—not even the kind that sways art judges. “This is in line with previous decisions that require human authors,” says Rebecca Tushnett, a professor at Harvard Law School and a leading copyright scholar.
This is an example that goes back to 2018 when a photo taken by a macaque was declared public domain because monkeys cannot hold copyright. PETA may think differently, but by law, monkeys and machines are equally entitled to copyright protection. (And it’s not just in the US. In almost every country, copyright is based on human authorship.)
Alan came to the dog in an attempt to register his work. He sent a written explanation to the Copyright Office detailing the amount of work he had done to manipulate what Midjourney had created, as well as how much manipulation he had done with the raw image, using Adobe Photoshop to remove errors and Gigapixel AI to increase size and resolution. He noted that creating a painting required at least 624 text prompts and input repetitions.
The Copyright Office agreed that the parts of the painting that Allen replaced with Adobe were the original work. However, it maintained that other parts generated by AI could not be copyrighted. In other words: Allen could copyright parts of the painting, but not the whole thing. This July, Allen appealed again, arguing that the office had ignored the “essential element of human creativity” needed to use Midjourney. He tried to use the fair use theory to argue that his work should be registered because it amounts to a transformative use of copyrighted material.
“The underlying AI generated work constitutes only the raw material that Mr. Allen has transformed through his artistic contributions,” Allen wrote.
The Copyright Office didn’t buy it. “The work cannot be registered,” read the final judgment dated September 5.
Allen’s brazen efforts reflect a strong legal consensus. This August, a US federal judge dismissed a case brought by Missouri-based AI researcher Stephen Thales, who was on a mission to prove that the AI system he invented deserved copyright protection. Judge Beryl Howell of the US District Court for the District of Columbia wrote in her decision, “Plaintiff cannot point to any case in which a court has recognized copyright in a nondescript work.
Thales is currently appealing the verdict. Ryan Abbott, his attorney, does not believe the Copyright Office’s decision on Allen will affect his client’s appeal. But he thinks it has a chilling effect on the wider world of AI-assisted art. “I think it will be a huge incentive for people to develop and use AI to make art,” Abbott says.