Joint Statement – Fighting for Rights of Historical Masterpiece After Copyright Refusal

by | Wednesday, March 22nd, 2023 | News | 2 comments

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.”[1]

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.

[1] Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58, 4 S. Ct. 279, 281, 28 L. Ed. 349 (1884)


  1. Sidijera Loquepienso

    As this declaration states, they seem to worry about the copyright of artwork. But sadly, I would say AI images can’t be copyrighted, at least the way it works nowadays. There is a key difference between AI and other arts, like photography:
    AI generators need input data. Most AI generators were developed by the illegal use of images and artworks protected by copyright for its training. Sure, generative AI is more complex that a collage tool, but, at the end, the data used to train these systems directly affects the output image, even if it is guided by a human giving prompt. You can compare it to a traditional human artist taking references from previous drawings (which, is a slight inaccurate comparison), but in that case it would be considered a derivative work. As you should know, it is illegal for an artist (whether traditional, digital or photographer, it doesn’t matter) to create derivative work of copyrighted artworks without the explicit consent of the original author. It is one of the main protections that copyright gives to the artist. If one day the technology is fair developed, using open-source images and licensed images (which I hope), AI generated images may be copyrighted. But for now, I am afraid it would be an unfair situation for artists and photographers. If AI artist want to be recognised as so, they must play by the same rules of the rest of the artists.
    You must respect others’ will from the beggining if you want your own to be respected.

    • Jason Allen

      While the concerns raised in this comment about the use of copyrighted materials in training AI systems are valid, it is important to recognize that not all AI-generated works are created using illegally obtained data. Many AI developers are conscious of these copyright issues and strive to utilize legally available, open-source images, and licensed materials for training purposes. As the technology advances, we can expect more responsible and ethical AI development practices to emerge.

      Moreover, AI-generated works can be considered distinct from the copyrighted materials used in their training. The transformative nature of AI algorithms often results in outputs that are significantly different from the input data, reflecting the creativity and innovation of the AI developers and human users providing prompts. This distinction is crucial, as it differentiates AI-generated works from mere derivative works, which directly build upon or copy existing copyrighted content.

      It is also essential to acknowledge the human creative input that goes into crafting prompts for AI generative tools. When users provide specific instructions to shape the output of AI systems, they exercise a form of authorship, which is a key component of copyright eligibility. By overlooking this human element, we may inadvertently undervalue the creative contributions of those who use AI in their artistic endeavors.

      Furthermore, denying copyright protection to AI-generated works based on the current state of technology and data sourcing practices could hinder innovation and impede progress in the arts. Encouraging responsible AI development, fostering ethical data usage, and adopting a more inclusive approach to copyright protection would benefit artists, photographers, and AI developers alike. By doing so, we can ensure a fair and balanced copyright landscape that embraces the potential of AI-generated works while respecting the rights of all creators.

      All that said, it is important to note that the data sets used to train many of the current image synthesis models have, in fact, been procured legally. This means that AI developers have acquired the necessary permissions and licenses to use the images for training purposes, thereby adhering to the same rules and ethical standards that apply to traditional artists. As such, the argument against copyright protection for AI-generated works on the grounds of illegal data usage becomes moot and disingenuous. In light of this, it is crucial to reevaluate the copyright landscape with a focus on inclusivity and fairness for all creators, including those who develop and utilize AI-generated works responsibly.

      In conclusion, it is essential to recognize that the process of learning and gathering information from various sources, including images on the internet, is a fundamental aspect of human creativity and innovation. Arguing against the use of copyrighted images for training data models on this basis alone is somewhat absurd, as it would imply that any form of learning or inspiration derived from copyrighted content is inherently illegal. By understanding the transformative nature of AI-generated works and respecting the creative contributions of both AI developers and human users, we can work towards a more equitable and inclusive copyright landscape that benefits all creators in the ever-evolving world of art and technology.


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