The U.S. Copyright Office has once again refused to register a visual work that included elements generated using artificial intelligence (AI). In this most recent case, the work was a digital work submitted by Jason M. Allen entitled “Théâtre D’opéra Spatial.” The crux of the Copyright Office decision was that Allen’s work contained more than a de minimis amount of AI-generated content, which Allen refused to disclaim in his application.
The Copyright Office’s denial of the registration is consistent with the views it has expressed about the centrality of human authorship in: its denial of Stephen Thaler’s attempt to register the AI-generated work “A Recent Entrance to Paradise” (where Thaler listed an AI system as the author in his copyright application) (February 2022); its decision to limit the copyright registration for the graphic novel “Zarya of the Dawn” to exclude the AI-generated images from the registration (February 2023); and its Copyright Registration Guidance for Works Containing AI-Generated Materials (March 2023) (AI Guidance). The Office’s position on the human authorship requirement with respect to AI was recently supported by a district court. (See our August 28, 2023 article, “District Court Affirms Human Authorship Requirement for the Copyrightability of Autonomously Generated AI Works.”)
Background
Allen initially filed an application for “Théâtre D’opéra Spatial” in September 2022 but did not disclose that AI was used in the creation of the work. The Copyright Office learned about the AI usage because Allen’s work received national attention for being the first AI-generated image to win the 2022 Colorado State Fair’s annual fine art competition. As a result, the examiner assigned to Allen’s application sought additional information about Allen’s use of AI. In this respect, the fact pattern mirrors that of the “Zarya of the Dawn” application process, where the Copyright Office only learned of the applicant’s use of AI when she publicized that she was able to register an AI-generated work.
When prompted by the Copyright Office, Allen provided the requested information about his work, but refused the examiner’s request to disclaim the AI-generated portions of his work. As a result, the Copyright Office refused to grant Allen a registration in the work in December 2020, and subsequently rejected Allen’s first request for reconsideration in June 2023 after Allen again refused to disclaim the AI-generated portions of his work. Allen filed a second request for reconsideration thereafter, which was denied on September 5, 2023.
