Artist appeals copyright denial for prize-winning AI-generated work

“Théâtre D’opéra Spatial” is a wholly original image expressing his idea, Allen said, and to produce that human expression, he dedicated more than 100 hours to refining Midjourney text prompts through an iterative process that he estimates took more than 600 prompts. Allen told Ars that through this process, he crafted his own prompt language after determining “which parts of his instructions were effective and which were not,” as well as which parts were “not even considered.”

Like a photographer staging a shoot or a movie director communicating his vision to a cameraman, Allen argued that he—not Midjourney—composed the image, arranging the AI-generated elements of the image through prompting to match his precise vision. He argued that this “tedious, complicated, and often frustrating endeavor” went beyond the minimum standard required for human authorship that copyright law requires.

Allen “made the creative decisions on whether or not to retain, remove, enhance, or alter the elements present in the output, or to add new ones,” his complaint said. “Midjourney, lacking autonomous creativity, simply executed the detailed guidance” that Allen provided, proving that his “extensive effort and careful direction were crucial in creating the image, far surpassing the role of the AI tool.”

The Copyright Office has said that Allen’s prompts are copyrightable, but only Midjourney was responsible for the output derived from the prompts. Walsh told Ars that if Allen had used any non-AI tool to transform the final image a little, even just applying a filter, he would be “good to go” to register his work and sue anyone who “verbatim copies” it.

But Allen thinks his work already demonstrates enough human authorship without any filtering or further transformation. In his appeal, Allen requested a judicial review to determine whether the denial of copyright was “arbitrary and capricious.” Otherwise, “fully deferring to the agency’s determination without closer examination of their rationale” will “waste” both the courts’ and artists’ limited resources, Allen alleged, while providing little protection for artists confused about how to adhere to the Copyright Office’s “hazy guidance.”