Copyright board delivers blow to ‘Terminator’ tech over photo protections


A U.S. review panel ruled that an award-winning image generated by artificial intelligence is just not protected by U.S. copyright since it was not made by humans.

The U.S. Copyright Office Review Board rejected a request by artist Jason M. Allen for copyright protection for his image “Theatre D’opera Spatial,” which was generated the AI system Midjourney, in a ruling issued earlier this month.

The image, which depicts a futuristic royal court, was the winner of the Colorado State Fair’s 2022 art competition, generating national attention as the primary AI-generated image to win the competition.


Theatre D’opera Spatial (U.S. Copyright Office)

Allen initially filed an application for copyright with the U.S. Copyright Office in September 2022 and didn’t disclose that the image was created with AI, in response to the review board summary of the ruling, prompting an examiner assigned to the case to ask for a proof of the method utilized in creating the work.

Allen explained that he “input quite a few revisions and text prompts not less than 624 times to reach on the initial version of the image,” which created an initial version of the image that Allen edited with Photoshop. Due to Allen’s use of Midjourney to generate the image his request for a copyright was denied by the office.

Allen appealed that ruling in January, but was once more denied copyright protection for the image because “the image generated by Midjourney that formed the initial basis for th[e] Work is just not an original work of authorship protected by copyright.”


“The Office accepted Mr. Allen’s claim that human authored ‘visual edits’ made with Adobe Photoshop contained a sufficient amount of original authorship to be registered,” the ruling reads. “Nonetheless, the Office explained that the features generated by Midjourney and Gigapixel AI have to be excluded as non-human authorship… Because Mr. Allen sought to register your entire work and refused to deny the portions attributable to AI, the Office couldn’t register the claim.”

raw AI image of Theatre Dopera Spatial

Theatre D’opera Spatial as generated by AI before it was edited with Photoshop. (U.S. Copyright Office)

One other appeal filed by Allen was also denied earlier this month, reasoning that the artwork contained greater than a minimal amount of AI-generated content.

The ruling is not the primary time the Copyright Office Review Board denied protection for an AI-generated image, with the board coming to an analogous ruling in May 2022. In that case, computer scientist Stephen Thaler sought copyright protection for a picture he generated with a Creativity Machine algorithm he created, in response to a report from the Verge. 

Like Allen’s image, Thaler’s application for cover was denied. Thaler would later sue the office in federal court, with U.S. District Judge Beryl A. Howell ruling that AI-generated artwork can’t be copyrighted.

The emerging technology was once the topic of sciencefiction -movies corresponding to the favored “Terminator” series, but has in more moderen years seen widespread mainstream use with each image and text platforms.

The U.S. Copyright Office declined a Fox News request to comment on this story.

Photo of Jason Allen, AI illustration artist

Jason Allen (RJ Sangosti/MediaNews Group/The Denver Post via Getty Images)


Allen told Reuters earlier this month that the review board’s latest decision was expected, but in addition expressed confidence that he “will win in the long run.”

“If this stands, it’s going to create more problems than it solves,” Allen said. “That is going to create latest and artistic problems for the copyright office in ways we will not even speculate yet.”

Allen didn’t immediately reply to a Fox News request for comment.

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