AI-Generated Artwork That Spurred Controversy Can’t Be Copyrighted, US Officials Say

An AI-generated image that won an image competition at the Colorado State Fair last year, spurring many to sound off online, cannot be copyrighted because of the way it was made, the US Copyright Office Review Board said last week.

In a decision released on Tuesday, the office explained that its decision rested largely on the extent to which Midjourney had been involved in the image’s creation.

Had its maker, Jason M. Allen, enlisted Midjourney in minimal, negligible ways, he could still be said to be its human author, the office wrote. But because Midjourney was utilized so extensively, it did not meet the criteria for receiving a copyright.

“If all of a work’s ‘traditional elements of authorship’ were produced by a machine, the work lacks human authorship, and the Office will not register it,” the decision reads. “If, however, a work containing AI-generated material also contains sufficient human authorship to support a claim to copyright, then the Office will register the human’s contributions.”

The artwork, titled Théâtre D’opéra Spatial, depicts a view of several performers on a stage, as though seen from the point of view of a cast member looking out toward the audience. They perform before a giant aperture through which can be seen the hints of a fantastical city.

When Allen’s work won the top prize in the digital category for art at the Colorado State Fair in 2022, many said they were anxious about a time in which AI art could receive such an honor. Allen defended the work, saying, “I wanted to make a statement using artificial intelligence artwork. I feel like I accomplished that, and I’m not going to apologize for it.”

In the year since then, others have tried to point out the contradictions inherent in AI-generated art being stacked up against human-produced work. One artist even submitted an AI-generated piece to a Sony-sponsored photography prize, then forfeited his award once he won.

Allen had attempted to create a case that he had played an organic role in his creation. After generating the image in Midjourney, he said, he made changes to it in Photoshop, then scaled it up using Gigapixel AI.

“In the Board’s view,” the decision said, “Mr. Allen’s actions as described do not make him the author of the Midjourney Image because his sole contribution to the Midjourney Image was inputting the text
prompt that produced it.”

The artist, meanwhile, has continued to seize on the attention paid to the artwork. He is planning to sell limited-edition versions of the image through his website starting on Wednesday; he has priced them at $500 each.