Page:Théâtre D’opéra Spatial (USCO Review Board, 2023).pdf/2

Tamara Pester, Esq. Tamara S. Pester, LLC II.ADMINISTRATIVE RECORD

On September 21, 2022, Mr. Allen filed an application to register a two-dimensional artwork claim in the Work. While Mr. Allen did not disclose in his application that the Work was created using an AI system, the Office was aware of the Work because it had garnered national attention for being the first AI-generated image to win the 2022 Colorado State Fair’s annual fine art competition. Because it was known to the Office that AI-generated material contributed to the Work, the examiner assigned to the application requested additional information about Mr. Allen’s use of Midjourney, a text-to-picture artificial intelligence service, in the creation of the Work. Email from U.S. Copyright Office to Tamara Pester (Sept. 28, 2022). In response, Mr. Allen provided an explanation of his process, stating that he “input numerous revisions and text prompts at least 624 times to arrive at the initial version of the image.” Email from Tamara Pester to U.S. Copyright Office (Sept. 30, 2022) (“Allen Sept. Creation Explanation”). He further explained that, after Midjourney produced the initial version of the Work, he used Adobe Photoshop to remove flaws and create new visual content and used Gigapixel AI to “upscale” the image, increasing its resolution and size. Id. As a result of these disclosures, the examiner requested that the features of the Work generated by Midjourney be excluded from the copyright claim. Email from U.S. Copyright Office to Tamara Pester (Oct. 14, 2022). Mr. Allen declined the examiner’s request and reasserted his claim to copyright in the features of the Work produced by an AI system. Email from Tamara Pester to U.S. Copyright Office (Oct. 25, 2022). The Office refused to register the claim because the deposit for the Work did not “fix only [Mr. Allen’s] alleged authorship” but instead included “inextricably merged, inseparable contributions” from both Mr. Allen and Midjourney. Initial Letter Refusing Registration from U.S. Copyright Office to Tamara Pester at 1 (Dec. 13, 2022).

On January 24, 2023, Mr. Allen requested that the Office reconsider its initial refusal to register the Work, arguing that the examiner had misapplied the human authorship requirement and that public policy favored registration. Letter from Tamara Pester to U.S. Copyright Office at 2, 4–8 (Jan. 24, 2023) (“First Request”). After reviewing the Work in light of the points raised in the First Request, the Office reevaluated the claims and again concluded that the Work could not be registered without limiting the claim to only the copyrightable authorship Mr. Allen himself contributed to the Work. Refusal of First Request for Reconsideration from U.S. Copyright Office to Tamara Pester (June 6, 2023). The Office explained that “the image generated by Midjourney that formed the initial basis for th[e] Work is not an original work of authorship protected by copyright.” Id. at 6. 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. Id. at 8. However, the Office explained that the features generated by Midjourney and Gigapixel AI must be excluded as non-human authorship. Id. at 6–7, 9. Because Mr. Allen sought to register the entire work and refused to disclaim the portions attributable to AI, the Office could not register the claim. Id. at 9.

In a letter submitted July 12, 2023, Mr. Allen requested that, pursuant to 37 C.F.R. § 202.5(c), the Office reconsider for a second time its refusal to register the Work. Letter from