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State Fair Winner Receives Another Registration Refusal

on Thursday, 28 September 2023 in Technology & Intellectual Property Update: Arianna C. Goldstein, Editor

In April we summarized some of the recent intellectual property updates stemming from the rise in popularity in artificial intelligence technology, in particular with generative AI. On March 16, 2023, the U.S. Copyright Office (“the Office”) launched a new initiative focused on examining the copyright law and policy issues that are raised by the use of AI. The initiative came along with registration guidance published in the Federal Register, specifically addressing the Office’s practices for examining and registering works that contain material generated using AI technology.

At the heart of the discourse surrounding AI is the principle that a copyright can only protect material that is the product of human creativity. For each case-by-case analysis, the Office identified the baseline question as “whether the ‘work’ is basically one of human authorship, with the computer [or other device] barely being an assisting instrument, or whether the traditional element of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.” Comparing generative AI to a commissioned artist, the Office noted that you can give the technology a prompt, but ultimately the machine, much like an artist, will determine how those instructions will be implemented in the final product.

As expected, there have been a number of copyright applications rejected due to lack of human authorship based on the use of generative AI. One in particular is a state fair winning AI-generated piece of artwork known as the Théâtre D’opéra Spatial:

Jason M. Allen (“Mr. Allen”) initially tried to register the above work on September 21, but did not include any mention of the work being generated with AI. The Office, however, was aware of the use of AI as the work garnered national attention after it won the 2022 Colorado State Fair’s annual fine art competition. After the Office inquired for more information on the use of AI, Mr. Allen stated that he “input numerous revisions and text prompts at least 624 times to arrive at the initial version of the image” and used Adobe Photoshop to further alter the image. The Office then requested that the features of the work generated using AI be excluded from the copyright claim. Mr. Allen refused to do so and thus, the copyright was refused. Mr. Allen later requested that the Office reconsider its initial refusal with no success. Only the visual edits made by Allen using Adobe Photoshop contained the sufficient amount of original authorship to be registered.

This decision was affirmed by the Copyright Review Board (“the Board”) on September 5, 2023. In its letter, the Board stated that “[Théâtre D’opéra Spatial] contains more than a de minimis amount of content generated by [AI], and this content must therefore be disclaimed in an application for registration.” The Board considered the 624 prompts made by Mr. Allen, but found the original authorship resulting from those prompts lacking. Ultimately, the result was dependent on how the AI system processed the prompts. This reiterated the Office’s earlier guidance that, “when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the ‘traditional elements of authorship’ are determined and executed by the technology—not the human user.”

We predict this will be one of many decisions determining the place of AI in copyright law and will continue monitoring for any significant updates.

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