Second Refusal from U.S. Copyright Office for Generative AI Art Copyright

Another loss in the battle for Generative AI art copyright. Colorado-based AI artist Jason Allen, who famously told the New York Times "Art is dead, dude," discusses his legal fight to copyright his artwork that he created using Generative AI software MidJourney. Without copyright protection, Allen claims, "Anyone can use my art, any way that they want."

Allen was joined on the forthcoming podcast by NY-based illustrator Molly Crabapple, who said AI is "using our stolen work to take our jobs" and "Generative AI allows your boss to spit out images of your work without having to pay you."

Both Allen and Crabapple can be heard on the podcast below, a production of Doha Debates and Foreign Policy. And pursuant to the video's released, Jason M. Allen announced the second refusal from the U.S. Copyright Office, deeming his artwork ineligible for full copyright protection.

Jason M. Allen gained notoriety in the art world last year after his AI-generated work won first prize in the Colorado State Fair Fine Arts Competition under the "Digital Art/Digitally Manipulated Photography" category. The piece, "Théâtre D'opéra Spatial", depicts a futuristic opera being performed on a theatre set in space.

In a Doha Debates podcast that aired this past Tuesday, Allen addressed his ongoing challenges copywriting the piece, which was created using the Generative AI software MidJourney. Allen told Doha Debates, “We’re the tip of the spear in the copyright battle right now. Our first reconsideration was denied, but we got that response and now our second request is pending. If they deny this request again, for the copyright of Théâtre D'opéra Spatial, we will be entered into the First District court." Upon the request's denial, Allen will proceed as such.

He continued, “I’m now being faced with the challenge of how I am going to share my work, knowing that anybody can take it and use it however they want.”

Allen also described creating his work, using popular AI software that some argue relies on using copyrighted images without compensation to artists. “It was a long iterative process,” Allen said. “I spent 80 plus hours to arrive at Théâtre D'opéra Spatial. I have thousands of space opera theater images, you realize. There are so many more like this that I haven’t shared and a lot of that is due to, I can’t protect my work. I’m being left with no recourse because the U.S. Copyright Office believes that I didn’t create this work.”

Allen also spoke about creating the work using MidJourney, and defended the use of Generative AI in art. “I’ve had nothing but the most positive experience using MidJourney. It’s the most aesthetically pleasing of all the different platforms out there, and I’ve tried a lot of them," Allen said. “[Théâtre D'opéra Spatial] is the exact type of aesthetic and emotion I was trying to evoke -- this grand, opera-type stage where I’m using concepts like anachronism, pareidolia and nostalgia to make it so your eyes can’t look away." 

Allen believes AI tools like MidJourney will play a key role for art going forward, noting, “Art has historically been the playground of the elite and the privileged few who can afford to spend their time creating, rather than laboring.”

“I’m confused how [anyone] could oppose AI’s potential to break down these barriers, giving a voice to those without the means to express themselves artistically.”

He repeated some of the controversial opinions he voiced after winning the Colorado State Art Fair competition, stating, “In my opinion, if you’re not breaking the law, there shouldn’t be anything outside of the limit... Nobody can tell you how to make your art. I chose to use MidJourney to create my work. It was the form with which I chose to express myself. It’s the most powerful form of human freedom of expression that’s ever been created, in my view.”

Allen stated that he feels people who are opposed to generative AI are “anti-art, anti-people. MidJourney and these image synthesis programs aren’t going to replace artists. There’s always going to be a market for these things.”

Allen’s remarks on the podcast come as a wave of lawsuits have been filed against companies like Microsoft, Meta and OpenAI, over whether the companies have the right to train AI using artists’ copyrighted work. Writers and actors in Hollywood are additionally on strike, calling for restriction and regulation of AI in the industry among other demands.

Jason Allen was joined on the podcast by New York-based artist and illustrator Molly Crabapple, who said, “Like most illustrators, I have been horrified by the profusion of product put out by these generative AI companies. When we talk about image generators, like MidJourney, DALL-E, Stable Diffusion... we’re talking about companies that are funded by tens of billions of dollars, by some of the most malignant actors in Silicon Valley who scrape the Internet for billions and billions of images -- many of them copyrighted…They took these images, they used them without compensation, without consent, without even telling the creators.”

Crabapple continued, “The only reason any AI generator is good is because it was trained on billions and billions of stolen images.”

“What’s even worse, is that the purpose of these products is to deskill, disempower and to ultimately replace working artists. The products are good enough to spit out a somewhat soulless facsimile of the work of any artist that they’re trained on.”

The battle will ostensibly continue in Colorado's First District Court for Generative AI art copyright.