Joint Statement – Fighting for Rights of Historical Masterpiece After Copyright Refusal
Jason M Allen
Tamara Pester Schklar
Our attempted registration of the Copyright in Théâtre D’opéra Spatial received an initial refusal on the basis that the work “does not contain human authorship,” only material that was “solicited from an AI art-generator.” Although the Copyright Office acknowledged the interaction between Mr. Allen and Midjourney, it determined that the human contributions, in terms of instructions/directions/methods of creating the artwork and the image that was generated, were “inextricably merged” and therefore incapable of Copyright protection due to the alleged non-human authorship part of the work.
“We believe this refusal of registration is inappropriate, and we have submitted a request for reconsideration,” notes Tamara Pester Schklar, the intellectual property attorney representing Mr. Allen. We believe that AI should be treated like any other tool available to artists. The Copyright Office has previously said that only humans can be creators of original works. By suggesting that AI is the primary creator of Mr. Allen’s work, the Copyright Office is contradicting itself, as well as straying from well-established precedent which allows humans who have used novel tools to create a work, to own the copyright in that original work.”
“Not every tool available to create work is covered by the Copyright Act, and our courts and Congress have expanded the scope of copyright protection as new ways of creating art have evolved over more the last two centuries.” Someone who copied a photographer’s print back in 1884 even argued that the photograph couldn’t be subject to copyright protection. Even then, the court advised that “the only reason why photographs were not included in the extended list in the act of 1802 is, probably, that they did not exist, as photography, as an art, was then unknown, and the scientific principle on which it rests, and the chemicals and machinery by which it is operated, have all been discovered long since that statute was enacted.”
In addition to the precedential case law which suggest that new types of creations should be allowed the same scope of protection as artists who use traditional tools like paint and brushes, there are several public policy reasons to allow AI-assisted artwork to be eligible for copyright registration, and it is likely that this will become increasingly important as the use of AI in the arts continues to grow and evolve:
1. AI-assisted artwork is a form of creative expression, and as such, it should be entitled to the same intellectual property protections as any other artist. AI-assisted artwork is the product of a creative process, just like any other artwork. Copyright law exists to encourage creativity and innovation by providing legal protection for creative works. AI-assisted artwork is a new and innovative form of creative expression, and it should be eligible for the same protections as other forms of creative expression, such as traditional painting or sculpture.
2. AI-assisted artwork can be quite complex and sophisticated, and it may involve a significant amount of skill and effort on the part of the creators. Allowing AI-assisted artwork to be eligible for copyright registration would recognize the effort and skill that goes into creating such works, and would provide an incentive for creators to continue developing and refining their AI algorithms.
3. Copyright protection would provide a legal framework for protecting and monetizing AI-assisted works. Registering AI-assisted artwork with the copyright office will help to clarify the legal rights and responsibilities of the various parties involved in the creation of such works. It is important to determine who owns the copyright to the resulting work and how any potential profits should be divided. Allowing AI-assisted artwork to be registered with the copyright office could help to establish clear guidelines in these areas.
4. Allowing AI-assisted artwork to be eligible for copyright registration could help to foster the growth of the AI art community and encourage the development of new and innovative works. By providing legal protections for AI-assisted artwork, creators and artists would be more likely to share their work and collaborate with others, which could lead to the creation of new and exciting works of art. This could lead to the creation of new and innovative works of art, as well as the growth of new businesses and job opportunities in this field.
5. Allowing AI-assisted artwork to be eligible for copyright registration could help to ensure that the creators of the AI are fairly compensated for their work. If AI tools are able to help artists generate original and creative works, it stands to reason that the creators of the AI should be entitled to receive the same protections and benefits as any other artist.
Overall, there are strong arguments in favor of allowing AI-assisted artwork to be eligible for copyright registration. By doing so, we can recognize the creativity and originality of these works, encourage the growth of the AI industry in the creative sectors, and ensure that the creators of these AI are fairly compensated for their work.
 Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58, 4 S. Ct. 279, 281, 28 L. Ed. 349 (1884)