AI artist challenges copyright rules

Digital artist Jason Allen spent more than 100 hours designing a piece for a contest, but the U.S. Copyright Office denied his copyright request because Allen created the artwork using artificial intelligence.

Instead of using oil or acrylic for his Dune-inspired landscape, Allen fed 642 prompts into Midjourney, an AI image generator. The resulting image, titled “Théâtre D'opéra Spatial,” which is French for “Space Opera Theater,” won a digital art award at the Colorado State Fair in 2022. The U.S. Copyright Office denied Allen’s intellectual property request in 2022 and again in 2023, arguing the artwork shouldn’t be granted protection since it lacked adequate human involvement in the creation process.

Last month, Allen filed a lawsuit against the U.S. Copyright Office. While works produced with the help of artificial intelligence have sometimes been considered intellectual property, Allen’s case highlights the difficulty of determining how much human involvement is necessary to obtain copyright protection. Experts disagree about whether the very human attribute of creativity can be attributed to nonhuman entities.

Intellectual property refers to creations of the mind, such as copyright, trademarks, and patents. Laws for each category prevent a work from being reproduced without the owner’s permission. Copyright is awarded to “creative works” like movies or paintings, and it exists from the moment the work comes into being. For works made after 1978, this status lasts for 70 years after the author’s death. Anonymous works have copyright for up to 120 years.

Just like with traditional artwork, artists have to register for copyright protection for images created via artificial intelligence if they want to sue for infringement.

In the court briefing, Allen argued that his work was being replicated without his consent. His lawyers cited a social media post in which another artist, Adrian Elton, copied Allen’s futuristic landscape within another picture. Elton acknowledged that he got the original from Allen’s piece, but he said that “no theft has occurred” since Allen didn’t hold official copyright status for the artwork.

For now, Allen does not have standing to sue people who profit from his designs. Works created via AI automatically go into the public domain upon production unless the author can prove that he or she significantly participated in the creative process. According to 2023 guidelines from the U.S. Copyright Office, “what matters is the extent to which the human had creative control over the work’s expression and ‘actually formed’ the traditional elements of authorship.”

Some artists have met that proof requirement. Author Kristina Kashtanova received official copyright status for Zarya of the Dawn, a graphic novel with AI-generated images based on prompts about the actress Zendaya. In 2023, the Copyright Office decided to copyright Kashtanova’s text, but revoked copyright for the computer-made images.

Subdividing Allen’s artwork was trickier since he invested time into making “Théâtre D'opéra Spatial” and used Adobe Photoshop to touch it up. But the office denied his piece copyright protection because it wasn’t possible to separate his work from that of the AI generator.

Andrés Guadamuz, a senior lecturer on intellectual property at the University of Sussex, doesn’t see why certain artificially-generated works should be denied protection, regardless of which element can be attributed to the person. According to Guadamuz, AI should be thought of as a tool, much like auto-tune or an advanced camera. “I think that as long as there is a human element in the decision-making process, potentially a work that is generated by AI could have copyright,” he said.

But simply entering a couple of prompts into software like Dall-E 3 or Midjourney doesn’t count. “I type ‘a cat in London, by Van Gogh.’ I don't think it should have copyright,” said Guadamuz. “I should be able to provide evidence that more thought went into this.”

The question remains: how much thought? How much human authorship? The Copyright Office seems to have some benchmark in mind since, as of February, at least 100 works created with the help of AI were granted copyright.

Across the pond, the United Kingdom has made explicit provisions for copyrighting AI artwork. Back in 1988, the U.K. passed legislation which allowed for copyright of works “generated by a computer in such circumstances that there is no human author of the work.” In these cases, copyright is awarded to the person who prompted the images. This provision doesn’t mean artificial intelligence systems themselves can be awarded copyright protection under current U.K. law.

Stateside, the courts have affirmed that computers can’t be given full credit for authorship. This precedent was established in a recent court case when computer scientist Stephen Thaler claimed that his patented computer system, dubbed the “Creativity Machine,” could generate images on its own without any human input. In 2023, U.S. District Judge Beryl Howell ruled against Thaler. “Human authorship is a bedrock requirement of copyright,” she wrote in her decision.

With rulings like these, granting copyright to the artificial intelligence itself likely isn’t on the way anytime soon, at least not in the United States.

And even after court cases like Allen’s are decided, Guadamuz doesn’t foresee that copyright laws will change drastically. In his experience, the vast majority of AI creators don’t worry about other people copying their ideas since the majority of their income doesn’t come from copyright.

But it may still come down to a question of money. “As soon as the Disneys of the world and the big music creators start using AI, or it’s recognized that they’re using it, they’re going to push for the law to be changed,” Guadamuz said.