Denying Copyright for AI-Assisted Art Threatens Innovation
Jason M. Allen, an artist whose AI-generated image won a digital art competition prize in 2022, recently sued the U.S. Copyright Office for rejecting his application for copyright of the image. In its refusal to grant copyright protection to Allen’s work—which he created using 624 prompts on the generative AI platform Midjourney—the Copyright Office argued that the artist’s creative process to generate the award-winning image did not meet the criteria for “human authorship as we understand it.” However, this decision rests on a misunderstanding of generative AI as merely a tool in the creative process, leading the Office to wrongly deny copyright for AI-assisted works. The Copyright Office should reverse its stance and grant protection to artists who demonstrate original creativity in AI-assisted creations.
The Copyright Office has rightly ruled that only humans, not AI systems, can be recognized as authors under copyright law. However, its latest decision unnecessarily narrows the scope of protection for human creators, excluding AI-assisted work that involves significant human creativity. Copyright should extend to artists using new tools—whether brushes, cameras, or generative AI—just as it did with digital graphic design and computer-generated art in previous decades. Denying copyright to AI-assisted art risks stifling innovation, discouraging artists from exploring new tools, and ultimately slowing cultural and artistic progress.
The Copyright Office unfairly discriminates against artists using generative AI by refusing copyright for works created using prompt-based AI tools, labeling them as “mechanical reproduction” rather than recognizing the creative role of the artist. In a policy guidance issued this year, the Copyright Office explained it evaluates copyright applications based on whether the AI technology used was a “mere instrument” aiding the author or the outcome of a mechanical process operating independently, without human creative input or guidance. It categorizes prompt-based AI tools as the latter.
However, many human creators use prompt-based generative AI tools with creativity and intent, making deliberate, time-consuming decisions that shape the final product. For example, Allen carefully reviewed each image that Midjourney generated in response to his prompts, analyzing how the tool incorporated his instructions and refining the image to align with his original vision. Artists like Allen often engage in a back-and-forth process with AI tools, refining outputs, modifying elements, and adding unique, personal touches that reflect their artistic spirit.
Just as a photographer makes numerous creative choices to capture the perfect shot—expressing their vision through the camera—AI artists apply judgment, make choices, and direct the final form of their work. This significant human input ensures the final product embodies human expression and deserves the same protection as any other artistic creation.
The Copyright Office should define “substantial human effort” to distinguish between simple, automated outputs and works like Jason Allen’s, where the artist invests significant time and creative input to shape the final product. Currently, the Office’s guidelines dismiss all prompt-based AI-generated work as lacking originality, failing to account for instances where artists actively collaborate with AI tools to bring their unique vision to life. Clear criteria for substantial human input would ensure better protection for artists using AI as a creative tool.
Denying copyright protection for AI-assisted art risks discouraging artists from embracing new technologies, and stifling creativity and innovation. Copyright protection encourages human creativity and artistic innovation by rewarding the creation of original works, fueling artistic progress. Throughout history, art has evolved alongside technology, from using 3D modeling to image editing software, enabling artists to push boundaries and explore new forms of expression.
Today, many artists around the world are experimenting with AI, exploring new “aesthetic realms” and driving the evolution of art. By refusing copyright for works made with generative AI, the Copyright Office risks deterring artists from experimenting with these tools, limiting the potential for new forms of expression and slowing artistic and cultural progress.
Denying copyright to artists using generative AI reflects a misunderstanding of these tools’ role in modern creativity. Allen’s work, shaped by his vision and effort, exemplifies how artists today push boundaries with new technologies. By embracing AI-assisted art within copyright law and adopting a more inclusive definition of substantial human effort, the Copyright Office can uphold its mission to protect human creativity in all its evolving forms, ensuring that artists who innovate with AI are recognized and rewarded for their contributions.
Image Credit: Kevin J. Beaty/Denverite
