Safeguard His AI-Created Pictures

Why This Artist Is Filing A Lawsuit Against The US

Copyright Office To Safeguard His AI-Created Pictures

41-year-old Jason Allen worked on Midjourney for over a hundred hours to produce an image that won an award. He is currently contesting the U.S. Copyright Office’s ruling that his work is not protected by a copyright.

Board game designer Jason Allen began working with text-to-image AI programs two years ago after being interested by AI-generated photos of bizarre landscapes that appeared on his Facebook page. He spent more than a hundred hours instructing image generator Midjourney to create a detailed illustration of women attending a futuristic royal court in May while donning space helmets and Victorian attire. A few months later, at the Colorado State Fair, the picture won first place for digitally altered photography.

But when he tried to copyright the image, the U.S. Copyright Office denied his application, saying it could not determine whether the recommendations were “sufficiently creative” and that the work lacked “human authorship.”
It was a kick in the face to Allen, who wrote 624 unique text-based recommendations to convince Midjourney‘s software to produce the appropriate image by altering its composition, style, colors, and tone.

“There was a lot that went into it,” he told Forbes, “and it was difficult to get the type of completions that I was looking for at the time using version two of Midjourney.”

He is now suing the organization and requesting that the Copyright Office’s ruling be overturned in a federal court.
Regarding ongoing legal disputes, the Copyright Office declined to comment. Although Midjourney did not reply to a request for comments, its website claims that artists retain ownership of all the photos they produce and are free to use them as they see fit. Its terms of service clearly say that the corporation has the right to distribute any content added to the system and that it also has the perpetual and irrevocable copyright licenses to duplicate, sublicense, and distribute any works made through its software.

Allen told Forbes that after the agency denied copyright protection for the image, titled “Théâtre D’opéra Spatial” (French for “space opera theater”), his work was ripped off by other artists, and people have tried to sell the image as their own on platforms like Amazon, Etsy and NFT marketplace OpenSea. He thinks it has something to do with the criticism he received from the art community, who claimed he had utilized AI techniques to cheat in the Colorado State Fair competition in 2022.

“Several people specifically stated that they wanted to rub it in my face and there was nothing I could do about it,” Allen said. “They were planning to steal my work and sell it as their own.”

One person, for instance, embedded the entire image into an AI-generated artwork of their own and wrote in a Facebook post that “They say that ‘great artists steal’, but as the IP never vested in Jason, no theft has occurred.”

Allen’s lawsuit comes at an important moment for artists and creators, amid a broad debate around the legality of companies scraping swathes of data from the internet to train generative AI software. In 2023, a group of artists filed a class action lawsuit against AI companies like Midjourney, as well as Stability AI and Runway, the creators of image generator Stable Diffusion, for allegedly using billions of copyrighted artworks without consent or compensation to train their AI models that now directly compete with the artists themselves.

A court granted permission for the copyright infringement lawsuit to move forward to discovery last month, after dismissing certain claims. Discovery is a formal process in which both sides communicate important material. This would provide artists a peep at the training data for the models.

In response, the corporations have requested that the court completely reject the claim. According to Runway, artists have been unable to demonstrate that Stable Diffusion stores their works or to produce precise replicas of their creations. Consistency AI has asserted that since the models are made of code rather than artwork, they do not violate copyright and that artistic styles cannot be protected by copyright. Additionally, Midjourney‘s legal team has likened their AI models to a photocopy in an attempt to demonstrate that the underlying technology does not violate copyright even if it does make exact replicas of another image.

The Copyright Office has received some of these inquiries and has been debating the implications of AI for ownership and intellectual property. The 150-year-old organization, housed within the Library of Congress, is attempting to ascertain how centuries-old laws apply to modern issues that artificial intelligence (AI) has created. It is investigating whether using copyrighted works to train AI systems violates the law or falls under fair use, as many AI companies contend, as well as what kinds of works produced with AI assistance are eligible for copyright protection.

The agency announced in February that it had registered over 100 works that used AI-generated text, song lyrics, and graphic elements, in addition to blocking works that it deemed to have too much AI and not enough human involvement.

Not all artists disagree with the agency’s ruling, including Allen. Author Elisa Shupe, who wrote a book using ChatGPT and self-published it on Amazon, gained a copyright for the arrangement and choice of AI-generated content in April after filing an appeal, according to Wired.

This means that while individual sentences and chunks of the book may be published differently and rewritten to resemble entirely human-written books, the book as a whole cannot be lawfully replicated.
Allen stated that he thought the image should still be protected by copyright law even if it hadn’t taken hundreds of tries to develop and he had just written one prompt, which was an image of a cat riding a skateboard, for example.

Rather than having to demonstrate the sweat of the brow and how much effort we put in, we don’t think that that’s a necessary factor in demonstrating human expression,” Allen said. “If you sat down with the intent to create a thing and using a machine as an assisting device, you created said thing. You are the author, you are the creator in our view.”

Allen now runs his own online gallery and sells fine art prints of illustrations he’s generated with the help of AI tools. He calls himself a digital creator rather than an artist and wants to be able to create hundreds of pictures with the help of artificial intelligence, all under the protection of copyright. “The thing about Midjourney is you don’t have to be an artist to create art anymore.”