Intellectual Property Blog

Is a Text Prompt in AI Software the Same as a Brushstroke to a Canvas? The Copyright Office Thinks Not.

On September 26, 2024, Jason Allen sued the Copyright Office in Colorado over the Copyright Office’s 2022 refusal to register “his” work entitled “Théâtre D’opéra Spatial.” 1:24-cv-02665. The “his” in the preceding sentence is not my cynicism about Mr. Allen’s authorship of the work; it is simply the open question that can be objectively argued either way. Mr. Allen says it is his. The Copyright Office determined it is not.

Without further ado, here is the work in question:

According to Mr. Allen’s Complaint and exhibits, he used the AI tool Midjourney and provided it with “at least” 624 text prompts to “arrive at the initial version of the work.” Without specific details, Mr. Allen claims he then “made several variations” of the work and used a Midjourney “upscale” tool to increase the image’s size and detail. He then transferred the image to his Photoshop software, where he made “further visual edits . . . to beautify and adjust various cosmetic details/flaws, artifacts.” He made two such “passes” at the work using Photoshop and, voila!, “his” work was complete.

This articulation of his labor in “creating” the work didn’t impress the Copyright Office, which presented the central question that the Copyright Act requires for registrability in this context: “Is the work the result of Mr. Allen’s intellectual labor, with Midjourney serving as a mere assisting instrument. Or whether Midjourney conceived and executed the uploaded work.” Entering 624+ text prompts, which “arrived at” the beginnings of his work likely didn’t satisfy the Copyright Office’s definition of “intellectual labor.” But why not?

Text prompts aren’t the equivalent of brush strokes, to be sure, but aren’t they articulations of the visualized work he wants to create? Stated differently, can I be an artist if I have the conceptual image in my mind but not the physical artistic skill to transfer that idea to the canvas or paper or blank screen on my computer? I think I can, but the government won’t provide the copyright registration stamp-of-approval for it.

We will be following this and the myriad of other cases in the world of AI and report back to you on how the rules are applied by courts and how the agency’s rules evolve or are altered in application. Stay tuned!

Bruce Paul is a Member of McBrayer PLLC, practicing in the firm's Louisville office.  His law practice primarily focuses on intellectual property, copyright law, trademarks, commercial and business litigation, employment law, and infringement litigation. Mr. Paul can be reached at bpaul@mcbrayerfirm.com or (502) 783-6245. 

Services may be performed by others. This article does not constitute legal advice.