Much consternation spread throughout the artistic community two years ago when Jason M. Allen, an executive at a tabletop gaming startup, submitted an AI-generated “painting” to a Colorado digital art competition and won. Critics claimed that Allen had cheated, but the prize winner didn’t have much sympathy for his detractors: “I’m not going to apologize for it,” Allen said. “I won, and I didn’t break any rules.” He also didn’t seem to care much for the complaint that AI companies like Midjourney—the one he used to create his “painting”— were poised to destroy the art market. “This isn’t going to stop,” Allen told the New York Times. “Art is dead, dude. It’s over. A.I. won. Humans lost.”
Now, in an ironic twist, Allen is upset that his work—which was created via a platform that’s been accused of ripping off countless copyrighted works—cannot, itself, be copyrighted, and is thus getting ripped off. In March of last year, the U.S. Copyright Office ruled that work derived from AI platforms “contained no human authorship” and therefore could not be extended copyright protections. Allen has been trying, since late 2022, to register his painting as a copyrighted work.
Last week, Allen filed an appeal in federal court in Colorado, arguing that the U.S. Copyright Office was wrong to deny copyright registration to his work, dubbed “Théâtre D’opéra Spatial.” Allen’s primary concern is that he’s not making enough money from the work. “I have experienced price erosion in the sense that there is a perceived lower value of my work, which has impacted my ability to charge industry-standard licensing fees,” he told Colorado Public Radio.
Allen also claims that people are “stealing” his work, which is funny since the people behind the AI tools he used to create the work have been accused of the exact same thing. “The Copyright Office’s refusal to register Theatre D’Opera Spatial has put me in a terrible position, with no recourse against others who are blatantly and repeatedly stealing my work without compensation or credit,” Allen said.
“There have been instances where people outright have ripped off my work, incorporated the entire piece into a new piece,” Allen complained to KUSA News. “There are people who have literally posted my work for sale in print or as crypto and are trying to sell it on OpenSea or Etsy.”
Midjourney, which Allen used to produce his digital work, is currently being sued by a group of artists who claim that their work was used (without compensation or credit) to train the algorithm that helped Allen create “Théâtre D’opéra Spatial.”
Allen’s lawyer, recently claimed that Allen had worked hard on his digital illustration. “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. Allen claims that after producing an initial image from Midjourney, he also spent time editing it with Photoshop, as well as another tool, Gigapixel AI.
Reading through the arguments in the case summary provided by the Copyright Review Board reveals a number of very entertaining claims made by Allen. For instance, after the Copyright Office ruled that content created by Midjourney couldn’t be copyrighted, Allen shot back, arguing that “the Office ignore[d] the essential element of human creativity required to create a work using the Midjourney program.” By that, Allen meant that the court should recognize “his ‘creative input’ into Midjourney, which included ‘enter[ing] a series of prompts, adjust[ing] the scene, select[ing] portions to focus on, and dictat[ing] the tone of the image,’” which he claimed was “on par with that expressed by other types of artists and capable of Copyright protection.”
“The refusal of the U.S. Copyright Office to recognize human authorship in AI-assisted creations highlights a critical issue in modern intellectual property law. As AI continues to evolve, it is imperative that our legal frameworks adapt to protect the rights of those who harness these technologies for creative expression,” Allen’s lawyer, Pester, recently said.
Got it. So while substantial efforts have been made to claim that real artists—people who spent years of their lives working to produce actual works of art—have no legitimate claim to legal protection from AI companies, the people that should get legal protection are the people using Midjourney.
