In a Friday motion for summary judgment, the government agency argued that copyright law has always protected only human-created works, and that the hundreds of prompts Jason Allen used on Midjourney amounted to ideas, not creative control over the work he titled "Théâtre D'opéra Spatial." The picture won an award at Colorado's state fair in 2022.
"Conceiving and communicating general ideas — no matter the level of effort involved — does not constitute authorship of an expressive work," the Copyright Office said. "After all, only the expressive elements, not the underlying idea itself, are eligible for copyright protection."
Allen sued in 2024, arguing that the more than 600 prompts he used to bring his idea to life met the copyright law's "widely accepted standard for originality," challenging the government agency's human authorship requirement. He compared his use of AI to using cameras in his motion for summary judgment, citing the 1884 U.S. Supreme Court decision that extended copyright protections to photographs: Burrow-Giles Lithographic v. Sarony
.Allen has said the government agency's refusal to copyright his work has left him unable to act against infringing copies or uses of his image, including its sale on Etsy.
The Copyright Office's motion for summary judgment disagrees with Allen's contention that prompting gave him enough control over the artwork. Since the same prompt can yield wildly different images, it was the tool that determined the creative expression, not him, the office said.
"Mr. Allen emphasizes that he revised and entered text prompts 'at least 624 times.' But repeatedly revising prompts does not amount to authorship," the office said, mirroring what it said in a report last year on the copyrightability of AI art. "The time and effort involved in creating a work is irrelevant in analyzing what aspects are eligible for copyright."
The Copyright Office also disagreed that the high court's decision in Sarony supports Allen's position.
"As the Supreme Court has explained, the author is generally the person who 'actually creates the work,'" quoting from the decision.
Counsel for Allen, Ryan Abbott of Brown Neri Smith & Khan LLP, said a Tuesday statement to Law360 that the Copyright Office "fundamentally misunderstands the use of generative AI."
"Mr. Allen did far more than contribute a general idea, he was responsible for the specific expression of his idea created with the assistance of Midjourney," Abbott said. "The Copyright Office instead notes that no matter how detailed a prompt, a user cannot protect works made using AI. That is an outcome very much at odds with the language and purpose of the Copyright Act, which has never so discriminated against the use of technology to generate creative works."
The government agency said Allen could have obtained a registration — albeit a limited one — if he had claimed only the edits he made to the picture and disclaimed the AI portions.
"Mr. Allen was not left without recourse even though he did not author every aspect of the work. As the office's AI Registration Guidance observes, determining authorship is 'necessarily a case-by-case inquiry,'" the Copyright Office said. "It is also not a binary inquiry. The office could have registered material authored by Mr. Allen had he agreed to limit his claim and disclaim the material that he did author."
Even if the court disagrees with the Copyright Office's position, it said the judge cannot directly order it to register Allen's work.
"Although Mr. Allen's motion for summary judgment does not appear to seek that relief, such relief is outside the scope of the [Administrative Procedure Act] in any event," the Copyright Office said, adding that the most the court could do is send the matter back to the agency for reconsideration.
In a separate case, computer scientist Stephen Thaler is also challenging the Copyright Office's human-authorship registration requirement with an appeal to the U.S. Supreme Court. Abbott also represents Thaler.
Allen is represented by Ryan Abbott and Timothy Lamoureux of Brown Neri Smith & Khan LLP.
The Copyright Office is represented by Jenna Munnelly of the U.S. Department of Justice's Civil Division.
The case is Allen v. Perlmutter, case number 1:24-cv-02665, in the U.S. District Court for the District of Colorado.
--Additional reporting by Elliot Weld. Editing by Adam LoBelia.
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