The legal battle over artificial intelligence and copyright continues to evolve.
AI artist Jason Allen, whose AI-assisted artwork “Théâtre D’opéra Spatial” won first place in the Colorado State Fair’s digital art competition in 2022, is asking a federal court to overturn the U.S. Copyright Office’s refusal to register the work. In a motion for summary judgment, Allen argues that the Copyright Office applied the wrong legal standard by concluding that his extensive use of the AI platform Midjourney prevented the work from qualifying for copyright protection.
The case has become one of the most closely watched copyright disputes involving generative AI because it asks a question that affects artists, filmmakers, musicians, designers, advertising agencies, and businesses alike:
When does AI become a creative tool, and when does it become the author?
The Copyright Office’s Position
Federal case law and guidance from the U.S. Copyright Office have consistently maintained that copyright protection applies only to materials that have human authorship, not works generated primarily by machines.
Allen applied to register Théâtre D’opéra Spatial, acknowledging that he created the image using Midjourney. The Copyright Office denied registration after concluding that the image contained more than a de minimis amount of AI-generated expression and that the expressive elements were produced by the AI system rather than by a human author.
The Office has emphasized that while AI may assist the creative process, copyright protects only the human-authored portions of a work.
Allen Says Human Creativity Should Count
Allen argues that the Copyright Office oversimplified how generative AI actually works. According to court filings, he spent more than 100 hours refining prompts, generating hundreds of image variations, selecting outputs, revising instructions, editing results, and making creative decisions before arriving at the final image. He contends that the finished work reflects extensive human judgment rather than autonomous machine creation.
His lawsuit argues that prompting, selection, iteration, and artistic direction are themselves acts of authorship deserving copyright protection.
The Case Is About More Than One Artwork
Although Allen’s lawsuit concerns a single image, its outcome could influence countless industries that now rely on generative AI.
Today, AI is used to assist in creating:
- concept art;
- marketing materials;
- advertising campaigns;
- architectural renderings;
- fashion designs;
- film pre-visualization;
- video game assets;
- music production;
- written content; and
- product design.
Very few creators simply enter a prompt and accept the first result. Many spend hours, or even days, iterating prompts, combining outputs, editing images, adding original elements, and refining the final product. The legal question is whether those creative decisions amount to human authorship under the U.S. Copyright Act.
Where Courts Draw the Line
Current U.S. copyright law does not prohibit using artificial intelligence. Instead, the focus is on who exercised creative control over the expressive elements of the final work.
If AI merely functions as another creative tool—much like Photoshop, a digital camera, or editing software—the resulting work may still qualify for copyright protection to the extent of the human author’s original contributions.
However, where the expressive elements are generated primarily by the AI system with minimal human creative input, the Copyright Office has generally concluded that copyright protection is unavailable for those portions of the work. That distinction has become the central issue in nearly every major AI copyright dispute.
Why Businesses Should Pay Attention
This debate extends well beyond artists. Companies increasingly rely on AI-generated content for branding, advertising, product development, social media, software design, and entertainment.
If AI-generated works cannot receive full copyright protection, businesses may face uncertainty regarding ownership of marketing assets, enforcement against infringement, and valuation of creative assets, among other business considerations. Organizations investing heavily in AI-generated content should carefully evaluate how those works are created, documented, and incorporated into broader creative projects.
Documentation Matters More Than Ever
One lesson emerging from recent Copyright Office decisions is the importance of documenting the creative process. Businesses and creators using AI should consider maintaining records illustrating sufficient human editing, including the following:
- prompt development and revisions;
- selection and arrangement of outputs;
- post-generation modifications; and
- independent creative contributions.
Demonstrating meaningful human involvement is becoming increasingly important when seeking copyright protection or defending ownership rights.
The Future of AI Copyright – Looking Ahead
Jason Allen’s lawsuit is one of several cases testing how existing copyright law applies to generative artificial intelligence. Courts are now being asked to answer questions that Congress never contemplated when the Copyright Act was written. The answers will shape the future of creative industries for years to come.
Artificial intelligence is rapidly becoming part of the creative process rather than a replacement for it. As creators increasingly collaborate with AI tools, the legal definition of authorship will continue to face new challenges.
Romano Law will continue monitoring developments in artificial intelligence, copyright law, and intellectual property as courts and regulators define the future of AI-assisted creativity.
Contributions to this blog by Kennedy McKinney.