Jason M. Allen's "Theatre D'Opera Spatial" won an art competition at the 2022 Colorado State Fair, but the work was subsequently denied copyright protection due to his use of AI software to generate it and his unwillingness to disclaim that contribution to the whole. He is appealing that ruling, reports CPR News's Eden Lane.
Allen's attorney, Tamara Pester, distinguished Allen's case from the precedent-setting Thaler v. Perlmutter, a 2023 case where The U.S. District Court for the District of Columbia upheld the U.S. Copyright Office's decision to deny Stephen Thaler copyright for his AI-generated visual work "A Recent Entrance to Paradise." Thaler had claimed the work was created autonomously using an AI algorithm called "Creativity Machine." The copyright office cited a lack of human authorship when rejecting his request in 2019.
"In our case, Jason had an extensive dialogue with the AI tool, Midjourney, to create his work, and we listed him as the author," Pester said. She argued the Copyright Office's decision "raises profound questions about the role of AI in the creative process and the nature of creativity itself."
It's a good time to re-evaulate the work now we're a few more MJ generations in.
The positive: there's a certain charm now to that early-AI style, a science-fantasy dreamworld full of mystic light and impressionistic detail. Here is a slopcore aesthetic ready to be reappropriated.
The negative: those elements are now the stigmata of an old version of Midjourney's generative model. The surrealism is just the machine's nescience of how the world is structured and how things in it connect to one another. The detail is stastistical shine hiding its ignorance of form. Any prompt jockey could do it.
Here's the text of the Copyright Review Board's denial. The key line: "Because Mr. Allen is unwilling to disclaim the AI-generated material, the Work cannot be registered as submitted."
Though the board already made the point that the artist's own modifications to the AI-generated work do warrant copyright protection, well, here's the image Allen says Midjourney generated. Consider the meticulous painting skills that would be required to add detail in precisely the same style as the AI model that was used instead only to generate a blurry underpainting.
