Generative AI: Redefining Copyright Boundaries
Generative AI has made great strides over the last few years. While millions of people have enjoyed the tools utilising this new technology, it has also rocked the IP world, particularly copyright. For instance, we have the case of Jason Allen.
Jason Allen spent hours upon hours crafting an image on a platform called MidJourney. For a little context, MidJourney is an AI-powered platform designed to generate high-quality images from text prompts, allowing users to explore creative possibilities and experiment with various styles and themes. After more than 100 hours reworking the prompts on MidJourney, but also touching up the image on Photoshop and Gigapixel AI, Allen came up with an image featuring women dressed in Victorian gowns paired with astronaut helmets, participating in a futuristic royal court. Allen sought protection for his work entitled “Théâtre D’opéra Spatial”, claiming “AI is a tool, just like a paintbrush, and a creative impulse is still necessary to activate this tool”. However, the United States Copyright Office (USCO) refused his request, finding it lacked human contribution and resulted too heavily from the work of a machine.
That being said, not all works using AI face the same fate. In 2022, Kris Kashtanova fought to obtain copyright protection for her comic book, Zarya of the Dawn, and managed to do so. In this case, the difference was that only the drawings originated from AI, while the text, structure and universe are all the product of Kris’ imagination, making it sufficiently human to earn protection.
The USCO clarified this in a decision from March 2023, declaring that it would not issue registrations for works fully created by AI. Nonetheless, there is room for works that utilise AI, provided they also exhibit a meaningful degree of human input and creativity. Earlier, in February of the same year, the agency had turned down works it found to be excessively influenced by AI with minimal human involvement, while it had approved over 100 works featuring AI-generated elements like song lyrics, texts, and visuals.
A few weeks ago, Allen decided to take legal action against the USCO and its director, Shira Perlmutter, in hopes of finally obtaining the intellectual property protection he is after. His claim argues that “a Copyright Examiner may not even be able to distinguish an artwork that used AI tools to assist in the creation from one which does not use any computerised tools, thus making the review process entirely arbitrary”. In fact, the appeal even states that the registration refusal was “arbitrary and capricious”. We shall see whether he will obtain a more favorable outcome this time.
As generative AI continues to evolve, it presents both opportunities and challenges for creators and legal systems worldwide. This delicate interplay between human ingenuity and machine assistance is redefining the boundaries of artistic creation and ownership.
To remain up to date on these complex issues, our intellectual property legal team and advisors can be contacted at contact@alatis.eu.
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