Jason Allen, the Pueblo West artist at the center of a controversy involving the use of artificial intelligence in the creation of art, said he was “not surprised” by the U.S. Copyright Office’s decision last week to refuse to allow him to copyright his work, “Theatre D’opera Spatial.”
The work, which evokes a Victorian oil painting of a grand ball with space opera elements such as a portal to another world, won the blue ribbon at the Colorado State Fair for amateur digital art in 2022. But the piece was created using the program Midjourney, an AI art program, with input from Allen.
“This is what we expected. The copyright office is erring on the side of caution, they want the courts to decide this,” Allen told the Chieftain.
“They aren’t the final decision-makers. Given the controversy, although societal pressures shouldn’t take precedence when making policy, I can understand why they’d want a judge to make a final decision,” Allen said.
Here’s why the copyright office denied Allen’s request
In the copyright office’s written decision, a three-person review board argued that Allen was not the “author” of the piece. The office stated that Allen’s “sole contribution to the Midjourney Image was inputting the text prompt that produced it,” and then editing the image with other programs such as Adobe Photoshop and Gigapixel AI.
However, Allen argues that AI is simply a tool — like an extremely complicated paintbrush.
“It’s not even artificial intelligence, technically, it’s like a complex matrix calculator. It’s like telling a mathematician that the answer you’re coming up with using a calculator, you didn’t come up with that answer,” Allen said.
Allen stated that while AI was used, the piece was still a massive personal undertaking, with many hours and 624 iterations created before the final piece was submitted.
“The number of prompts I put in before arriving at the final product was incalculable. But I spent over a month refining the prompt during testing, then 624 iterations running back the final prompt to discover ‘Theatre D’opera Spatial,'” he explained.
Allen estimates, conservatively, that he spent 80 hours or more working on the piece.
“But these are all level of effort arguments and value judgments and really don’t have anything to do with the copyrightability of the work. The transformative fair use argument is solid, and once a judge sees that they’ll really have no choice but to grant copyright to AI-generated works,” he said.
Transformative fair use is a type of fair use that builds on copyrighted work in a different manner or for a different purpose from the original and thus does not infringe its holder’s copyright.
The copyright office has rejected Allen three times since December 2022.
In a July appeal, Allen argued that the fair use doctrine “would allow for registration of the work” because it “allows for transformative uses of copyrighted material.”
“Mr. Allen argued that in this case, the underlying AI-generated work merely constitutes raw material which Mr. Allen has transformed through his artistic contributions. (Allen argued that) therefore, regardless of whether the underlying AI-generated work is eligible for copyright registration, the entire work in the form submitted to the copyright office should be accepted for registration,” the copyright office wrote in its final decision to deny the copyright.
Allen says the fight’s not over
Allen stated he was ready to fight the decision all the way to the U.S. Supreme Court if he had to.
“We have six months to bring our case to the first appeals court, and we are prepared, willing, and able to go all the way to the Supreme Court with this and I will. I’m going to fight like hell to protect the expressive rights of AI artists,” he said.
Meanwhile, another group of artists have filed a lawsuit against Stability AI, a London-based text-to-image AI art generator, claiming that the company used human-produced art to “train” the AI. The artists involved claim that this infringes their copyrights and allows large companies to profit from their work.
The complaint also names Midjourney and the online gallery DeviantArt.
“I think that artists are also trained on human art,” Allen said. “Are they saying AI isn’t allowed to be trained on human art?”
“You don’t need consent because of the nature of transformative fair use in order to establish the use of the work, it’s actually destroyed upon implementation. There’s no place this art is being stored or copied or referenced, that’s just not how this technology works,” Allen said.
Allen, who is also a game designer, said he feels that he’s perfect candidate to be thrust into the center of the zeitgeist.
“With Incarnate Games, I aspired to be a force multiplier in ‘the convergence,’ which is what I call the melding of the physical with the digital. I have a bachelor’s degree in computer science and a very high appreciation for art and artists,” he said.
“I would spotlight my artists on various projects, and even let them keep the copyright of the works that I commissioned, which is unheard of in business, it’s irresponsible,” he explained.
In addition, he says, he is a Ju-Jitsu practitioner, which he says makes him able to take pressure well.
“I’ve been forced into a position where I have to defend not only myself and my art but also all text-to-image-based platforms as a whole because I feel strongly about this. I’m not going to back down and apologize, because I’m proud of what I did, and I think that we shouldn’t be telling other people how to make their art,” he said.
“Here we have the most powerful form of freedom of human expression ever created, and they don’t want people to have access to that? I think that’s anti-art,” he said.
While the copyright war is only beginning, Allen is still marketing the piece. The launch of special edition prints of “Theatre D’opera Spatial” began at 11 a.m. Wednesday, and was set to run for 48 hours.
Questions, comments, or story tips? Contact Justin at jreutterma@gannett.com. Follow him on Twitter @jayreutter1. Support local news, subscribe to The Pueblo Chieftain atsubscribe.chieftain.com.