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Copyright Office denies Jason Allen was author of Theatre D’Opera image, prompt engineered on Midjourney (PDF download)

The U.S. Copyright published a second decision rejecting the registration of an image prompt-engineered on Midjourney. The first decision involved Kristina Kashtanova’s images in her graphic novel Zarya of the Dawn; the Office ruled that the images lacked human authorship or what the Office calls the “traditional elements of authorship,” despite Kashtanova’s development, through hundreds of prompts, of a consistent nonbinary visual character, Zarya, in 24 different images, with different scenery, depicting a nonbinary character’s confronting of feelings of loneliness.

This time, the U.S. Copyright Office ruled pretty much the same thing for the image titled Théâtre D’opéra Spatia, which the artist Jason Allen created using at least 624 prompts he wrote on Midjourney. “After Midjourney produced the initial version of the Work, he used Adobe Photoshop to remove flaws and create new visual content and used Gigapixel AI to ‘upscale’ the image, increasing its resolution and size.” Because Allen refused to disclaim from copyright registration the elements created using Midjourney as required by the Copyright Office’s new but controversial guidance on AI, the Copyright Office denied his entire registration. And, under the ruling, Allen isn’t considered the author of the image he created on Midjourney using prompts.

Jason Allen, Thetre D’opera Spatia

Copyright Office refusal to register the copyright for Théâtre D’opéra Spatia

THe Copyright Office’s view is wrong

I’ve already explained in a Washington Post Op-Ed why I believe the Copyright Office’s requirement of “traditional elements of authorship” is wrong, both constitutionally and as a matter of policy.

I’ve been working this summer on a law review article that goes into detail explaining the many reasons I think the Copyright Office’s position is bad for creators–and bad for progress in the United States.

Stay tuned.

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