"Art is dead, dude. It’s over. AI won. Humans lost": A controversial artist is reportedly losing millions of dollars because the US Copyright Office refused to register his AI-generated collection — it lacks 'human authorship'

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Can AI-generated content be copyrighted? An AI artist claims prompt engineering and fine-tuning are enough grounds.

Midjourney logo PC and mobile (2024)
(Image credit: Daniel Rubino)

What you need to know

  • An AI artist who won a painting contest in Colorado using a Midjourney-generated creation claims he's losing millions of dollars from people ripping off his work.
  • The artist claims the US Copyright Office's reluctance to register his AI-generated collection as copyrighted content has left him with the shorter end of the stick, allowing repeated stealing of his work without attribution or compensation. 
  • His lawyers argue that his prompt engineering and scene-selecting skills should be considered creative input or human authorship, and therefore, be used as grounds for copyright consideration. 

With the rapid prevalence of AI tools like Microsoft Copilot and OpenAI's ChatGPT, copyright infringement issues are seemingly becoming more rampant owing to their overreliance on copyrighted content for training. OpenAI CEO Sam Altman admitted it's impossible to develop tools like ChatGPT without copyrighted content, citing copyright law doesn't prohibit training AI models with copyrighted content.

In 2022, Jason M. Allen, an artist and executive at a tabletop gaming startup, participated in the Colorado digital art competition and won. However, his success was received with a cocktail of emotions, especially amongst other participants in the competition. The issue was centered on using Midjourney to generate his painting and its future implications for the art industry.

At the time, the AI landscape was relatively new, with companies like OpenAI coming to the limelight with the launch of ChatGPT. The competitors' woes didn't seem to faze Allen, who was blatantly soaking in his moment of glory, further indicating:

“I’m not going to apologize for it. I won, and I didn’t break any rules. This isn’t going to stop. Art is dead, dude. It’s over. AI won. Humans lost.”

Can AI-generated content be copyrighted?

Bing Image Creator vs Midjourney prompt: Manga cover art style, teenage girl with pig tails, blue hair, Tokyo neon street (Image credit: Windows Central)

And now, the tables have seemingly turned on the unfazed AI artist, who has blatantly expressed his frustrations over losing millions of dollars from people stealing his AI-generated work (via GIZMODO). For context, the US Copyright Office ruled that work generated using AI tools isn't protected from copyright infringement under copyright law since it does feature elements of human authorship.

Allen has since filed an appeal dubbed Théâtre D'opéra Spatial in the federal court in Colorado, seeking the Copyright Office to reconsider its ruling and protect his AI-generated content under copyright law, ultimately preventing his work from being ripped off. While speaking to Colorado Public Radio, Allen claimed that he isn't making enough money from his work:

"I have experienced price erosion in the sense that there is a perceived lower value of my work, which has impacted my ability to charge industry-standard licensing fees." 

Ironically, the AI artist claims that people are stealing his work while OpenAI, Microsoft, and Google are currently fighting copyright infringement lawsuits in the corridors of justice. Each of these companies has sophisticated AI image generation tools that can create complex structural designs that might eventually render professionals in the built environment jobless. However, a separate report counters the deductions by highlighting their shortcomings in following simple prompts like creating a plain white image. 

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According to Allen:

"The Copyright Office's refusal to register Theatre D'Opera Spatial has put me in a terrible position, with no recourse against others who are blatantly and repeatedly stealing my work without compensation or credit."

While making Allen's case, his lawyers detailed his efforts toward the final output featured in his Théâtre D'opéra Spatial creation. Beyond using Midjourney to generate images, Allen reportedly uses Photoshop to fine-tune images and further runs the images through Gigapixel AI for more editing and cleaning up. 

The US Copyright Office ruled that content created using AI tools, including Midjourney, can't be copyrighted. However, Allen argues that "the Office ignore[d] the essential element of human creativity required to create a work using the Midjourney program." As such, Allen wants his prompt engineering skills to be considered in the ruling, pushing for the copyrighting of AI-generated content. 

According to Allen's lawyer:

"The refusal of the US Copyright Office to recognize human authorship in AI-assisted creations highlights a critical issue in modern intellectual property law. As AI continues to evolve, it is imperative that our legal frameworks adapt to protect the rights of those who harness these technologies for creative expression."

It's unclear if Allen's case will hold any water in court, but as it stands, his legal team will have a long day in the corridors of justice trying to make the AI artist's case.

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Kevin Okemwa
Kevin Okemwa
Contributor

Kevin Okemwa is a seasoned tech journalist based in Nairobi, Kenya with lots of experience covering the latest trends and developments in the industry at Windows Central. With a passion for innovation and a keen eye for detail, he has written for leading publications such as OnMSFT, MakeUseOf, and Windows Report, providing insightful analysis and breaking news on everything revolving around the Microsoft ecosystem. You'll also catch him occasionally contributing at iMore about Apple and AI. While AFK and not busy following the ever-emerging trends in tech, you can find him exploring the world or listening to music.

3 Comments Comment from the forums
  • GraniteStateColin
    Clearly not a black & white issue and I respect those who think differently about this than I do. With that said, I think that to the extent the AI tool has done the majority of the work (admittedly "majority" can be subjective, but that's good for precedent to fill in via courts and common law), that work should not be copyrightable. That's the price you pay for using AI. The purpose of intellectual property law, both copyright and patent (not trademarks, those serve a different purpose) is to encourage artists and inventors to put their time and effort into creating, understanding that if they can't make money on it, they won't expend that effort.

    AI dramatically reduces the effort. In the case of 100% AI, it reduces it to 0. So those certainly should not be copyrightable. So then it's a question of deciding how much AI is too much. For me, arbitrarily, that "majority" term is the key. If it's a tool to help with some aspects of the art (like adding lighting or shading), that should still be copyrightable, but if there's more AI than artist, then no.

    ... in my opinion.
    Reply
  • Zoaea
    I think this particular person is a bit delusional though. How is he losing millions of dollars exactly? I haven't seen this piece of work being used in marketing at all. Even if some people are selling copies/prints I don't think it's that prevalent. All he needs to do is be louder about selling prints I suppose... I don't think most artists make millions on selling prints though of one image. 😳
    Reply
  • BadgerBee
    “blatantly and repeatedly stealing my work without compensation or credit”

    Wow, sounds a lot like the complaints of the thousands of artists whose work is used to train generative AI models.
    Reply