Another image produced by artificial intelligence has been denied copyright protection by the US Copyright Office.

Recently, the US Copyright Office refused copyright protection to an image generated by artist Jason M. Allen using the generative AI platform Midjourney, which won an award. The office stated on Tuesday, September 5, that because the work includes AI-generated elements, Allen’s image, “Theatre D’opera Spatial,” which has a science fiction theme, is not eligible to copyright protection.

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Before making changes to the image with Adobe Photoshop, Allen used Midjourney to “input numerous revisions and text prompts at least 624 times to arrive at the initial version of the image,” according to what he told the US Copyright Office. In order to be eligible for copyright protection, the office requested that Allen renounce the portions of the image created by Midjourney; Allen refused. As a result, the office turned down his application.

The image as a whole was not copyrightable because it contained “more than a minimal amount” of artificial intelligence-generated information, according to the Copyright Review Board at the US Copyright Office, which upheld that ruling.
“Entering a series of prompts, adjusting the scene, selecting portions to focus on, and dictating the tone of the image” are examples of Allen’s “creative input into Midjourney, which is on part with that expressed by other types of artists and capable of copyright protection,” according to Allen.

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He went on to say that the office should view the work as the whole of its parts and that the fair use doctrine would permit registration of the work by permitting “for transformative uses of copyrighted material,” regardless of whether the underlying AI-generated work is eligible for copyright protection.

The office registers “original works of authorship fixed in any tangible medium of expression” in accordance with the Copyright Act. The term “works of authorship” has been construed by courts to mean that the work must have been created by a human, and they have consistently rejected attempts to get copyright protection for “the creations of non-humans.”
In addition, Allen said that rejecting copyrights for content produced by AI creates a “void of ownership troubling to creators,” a claim that was also denied by the office.

Allen stated, “If this continues as it is, it will cause more issues than it will fix.” “This is going to cause the copyright office to face novel and inventive challenges in ways that are still beyond our current comprehension.”

Requests for comments from the media have not received a response from Midjourney platform representatives.


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