De minimis Standard in AI-Generated Art: Copyright Board rejects Théâtre D’opéra Spatial without Disclaimer

On September 5, 2023, the U.S. Copyright Office Review Board affirmed a refusal denying registration of the Work below.

The Board stated the Work is more than a de minimis amount of content generated by AI, and therefore, the AI-generated material must be disclaimed. If the AI-generated material is disclaimed, the Board notes it could consider whether human-authored elements can sustain a claim for copyright.

The artwork at issue was created by Jason Allen using Midjourney with at least 624 revisions/text prompts, then other tools for further editing. The Work particularly garnered significant attention as the first AI-generated image to win the 2022 Colorado State Fair's annual fine art competition.

Copyright Review Board Second Request for Reconsideration for Refusal to Register Théâtre D’opéra Spatial: https://www.copyright.gov/rulings-filings/review-board/docs/Theatre-Dopera-Spatial.pdf

Neer McD PLLC© 2023. This work is licensed under a CC BY 4.0 license. This license allows reusers to distribute, remix, adapt, and build upon the material in any medium or format, so long as attribution is given to the creator. The license allows for commercial use. An example of proper attribution is, “[Article Title]” by [Author] of Neer McD is licensed under CC BY 4.0.

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