Key Exhibits:

• • Exhibit 1: Facebook post showing another artist’s unauthorized use of Allen’s work, claiming “no theft occurred” since “IP never vested in Jason.”
  • Exhibit 2: Screenshot of the work being sold on Etsy without Allen’s permission.
  • Exhibit 3: Email correspondence detailing Allen’s back-and-forth with the Copyright Office examiner and the 624 prompts used.
  • Exhibit 4: Copyright Office’s initial refusal to register the work in December 2022.
  • Exhibit 5: Allen’s first request for reconsideration in January 2023.

Impact of Registration Denial:

• • Without copyright protection, Allen has limited recourse against rampant infringement and unauthorized uses of his artwork.
  • Third parties are exploiting the work commercially, such as selling unauthorized reproductions on online marketplaces like Etsy.
  • Some are arguing Allen has no ownership rights since the “IP never vested” in him, creating a legal void where no one seems to own the work.
  • This threatens Allen’s ability to control and monetize his own creation, as well as innovators’ incentives to use AI tools to generate new works.
  • Demonstrates need for clearer standards around AI authorship to balance protecting artists’ rights with encouraging creative applications of AI.

Significance of the Case:

• • Deciding AI’s Role in Authorship: Does using AI tools to create art mean the human artist isn’t the “author” of the resulting work?
  • Adapting Copyright Law for AI Era: How should copyright law and policy evolve to address the increasing use of AI in the creative process?
  • Balancing Incentives for Innovation: What balance between protecting artists’ rights and encouraging creative AI use will best promote innovation?
  • Potential Sea Change in IP Law: The ruling could dramatically reshape copyright law’s human authorship requirement for other AI-assisted works.
  • Guidance Needed for Artists & Innovators: The creative community needs clear guidelines on AI’s implications for copyright protection.

Allen’s Writing Technique for Prompts:

• • Be Specific: Use granular details about desired content, style, colors, composition, etc. to guide AI’s interpretation.
  • Use Modifiers: Include adjectives to convey mood, style, and emotions to influence the AI’s rendering.
  • Iterate & Refine: Study AI’s interpretation of prompts, identify what worked or didn’t, and clarify with each new prompt.
  • Word Placement Matters: Experiment with word order to see how it impacts the AI system’s visual emphasis and priority.
  • Test & Assess Results: Develop prompting approach through trial and error to learn how to “speak” to the AI to realizes your vision.

Directing the AI Like a Film:

• • Allen compares his process to a film director guiding a cameraman to capture their vision through multiple takes.
  • The 624 prompts are like a director giving a cameraman the same detailed shot instructions over hundreds of takes until it’s right.
  • Allen estimates he spent around 114 hours on the prompt-based iterative process and subsequent edits to bring his imagined scene to life.
  • He argues Midjourney is a complex tool for manifesting his vision, not an autonomous creative entity that generated the work on its own.
  • Like a photographer setting up a shot, Allen conceived of the scene and used AI to generate a visual expression of his mental picture.

Insight into Creative Control:

• • Importance of Prompts: Allen’s complaint illustrates the thought, care, and research that goes into crafting effective prompts to guide AI imagery.
  • AI as Artist’s Tool: Like a camera or digital design program, Allen used Midjourney to execute his artistic concepts and instructions.
  • Human-AI Collaboration: The intricate back-and-forth between Allen and Midjourney shows AI’s results depend heavily on human creative input.
  • Artist’s Intentionality: Allen’s 624 prompts demonstrate a dogged intent to manifest a specific mental image, not just wishful suggestions to AI.
  • Time & Effort to Create: The hours Allen spent directing the AI and refining the work underscore his authorial role, akin to a photographer or director.

Feist’s “Modicum of Creativity” Standard:

• • Allen argues the work easily meets Feist’s low bar for creativity required for copyright protection (a “creative spark” is enough).
  • The USCO failed to explain how the work doesn’t meet this standard, despite its originality in both conception & execution.
  • Like the photographer meticulously crafting a photo in Burrow-Giles, Allen’s 600+ prompts show a clear creative vision.
  • Complaint questions how USCO could find the work not minimally creative given its uniqueness & the effort to bring it to fruition.
  • Argues Feist requires finding of sufficient (human) creativity here as a matter of law based on undisputed facts of Allen’s process.

Adapting Copyright Law for New Technologies:

• • Allen says copyright law is meant to adapt to new tech, as it did for photography, to protect artists’ “writings” (creative expressions).
  • Argues the rise of AI art is akin to past advances like cameras or digital music – courts found ways to protect those novel works.
  • Stresses need for technologically neutral copyright standards so as not to punish artists for embracing innovative new tools.
  • Says USCO’s focus on what AI contributes vs. human input will chill creative development if taken to extreme.
  • Argues the Copyright Act is flexible enough to find Allen is the author/owner here as the human mastermind behind work’s creation.

Potential Impact on Generative AI:

• • Chilling Effect on Artists: If using AI tools makes resulting works uncopyrightable, it punishes artists for innovating and experimenting.
  • Deterring Creative AI Development: Artists & tech companies may shy away from creative AI systems if no IP rights in outputs.
  • Ownership Void Enables Infringement: With no one to enforce copyright in AI works, nothing stops rampant copying with impunity.
  • Reduced Incentive to Publish AI Art: If artists can’t monetize or control AI works, they may keep them private, reducing public access.
  • Need for Tailored AI Authorship Rules: Allen’s case may spur new standards weighing artists’ input vs. AI’s to decide ownership.

Compendium’s “Human Authorship” Test:

• • Allen says the agency misapplied its own Compendium test for what’s “human” vs. “machine” authorship.
  • Test asks if a machine (1) conceived of the work’s traditional elements of authorship & (2) executed them too.
  • He argues AI did neither here – he conceived of the key creative elements & directed the AI to execute his vision.
  • Claims USCO ignored how prompt-writing process is a skill to turn mental concepts into something AI can manifest visually.
  • Asserts if either conception or execution is human (and both were here), work qualifies as human-authored per USCO’s own test.

Improper & Inconsistent Demands:

• • Allen argues USCO made inappropriate demands for details of his process it wouldn’t ask of non-AI artists.
  • Notes agency doesn’t require authors to log their creative process, research, influences, or intentions to register works.
  • Suggests it violates Copyright Act’s tech-neutral framework to put AI artists to higher proof standard re authorship.
  • Also argues USCO treated his Midjourney use differently than Photoshop edits in terms of counting it as authorship.
  • Asserts USCO is treating newer AI-based tools as less “authorial” than established digital tools with no legal basis.

Opinion Built on Generative AI Fears?

• • Influence of Controversy: Allen thinks public backlash to his state fair win for AI art may have colored USCO’s review.
  • Confusion Over AI’s Role: Suggests USCO’s grasp of how Midjourney works and artist’s input may be clouded by anti-AI biases.
  • Discomfort With AI Capabilities: Argues impressive outputs challenge notions of human skill needed for copyright, triggering knee-jerk rejection.
  • Speculation Over Improper Motives: Complaint hints USCO’s harsh stance may aim to make example of Allen’s case to chill AI art.
  • Objective Review Skewed: Says USCO should assess work itself for copyright status – not how/why made – but appears swayed by anti-AI views.

Dissecting the APA Claim:

• • APA lets courts set aside agency actions found to be arbitrary, capricious, abuses of discretion, or illegal.
  • Allen says USCO’s refusal is all of the above b/c it misinterprets Copyright Act to deny protection to AI-assisted work.
  • Argues Compendium’s “Human Authorship” section relied on to refuse registration conflicts with Copyright Act’s mandates.
  • USCO’s reading of rule ignores how extensively Allen controlled AI’s “creativity” to express his own creative vision.
  • Asserts USCO abused its discretion by imposing higher authorship proof burden on AI artists than others.

Key Elements of Copyright Claim:

• • Copyright Act grants protection to “original works of authorship fixed in any tangible medium of expression.” 17 USC 102(a)
  • Allen contends his work meets this standard b/c it’s product of his creative vision expressed via AI tools as a jpeg.
  • Argues low Feist creativity bar is clearly met by unique combination of visual elements he conceived of & directed.
  • Work satisfies “fixed in tangible medium” prong as a digital image — just like other visual works courts have protected.
  • Claims authorship requirement met since Allen masterminded work and controlled AI’s execution of his vision, like a director.

Justifying the Relief Requested:

• • Court Has Authority: Can set aside arbitrary & capricious agency actions under APA and compel agency action per  Act.
  • Registration Required to Sue: Allen needs work registered to protect it from ongoing infringement in court.
  • Rampant Copying & Lost Revenues: Continued denial of registration allows unchecked copying & blocks licensing.
  • Efficient Resolution Needed: Declaratory judgment provides most direct route to deciding AI authorship issues.
  • Fees & Costs Authorized: Both APA & Copyright Act permit award of attorney’s fees & costs to prevailing plaintiffs.

Questions: Case Basics & Legal Issues

• • 1. What AI system did Jason Allen primarily use to create the artwork at issue?
    • A) DALL-E
    • B) Midjourney
    • C) Stable Diffusion
    • D) Jasper Art
  • 2. How many iterative prompts did Allen use in directing Midjourney to create his work?
    • A) Around 50
    • B) About 200
    • C) Over 600
    • D) Less than 10
  • 3. What is the name of the AI-assisted artwork at the center of this case?
    • A) Theatre D’Opera Spatial
    • B) Cosmic Opera Dream
    • C) Symphony of Stars
    • D) Celestial Stage
  • 4. What is the key legal issue at the heart of Allen’s lawsuit against the USCO?
    • A) Whether AI-assisted works can qualify for copyright protection
    • B) If the USCO followed proper procedures in denying registration
    • C) The amount of damages for infringement of Allen’s work
    • D) Whether Midjourney has any rights to Allen’s creation
  • 5. Which is NOT one of the key standards Allen argues his work meets for copyright protection?
    • A) Originality
    • B) Fixation in a tangible medium
    • C) Substantial similarity to another work
    • D) Human authorship

Answers: Case Basics & Legal Issues

• • 1. B) Allen primarily used the Midjourney AI system to generate the work, with additional edits in Photoshop.
  • 2. C) Allen went through over 600 detailed text prompts to guide Midjourney’s generation of the work to match his creative vision.
  • 3. A) The artwork Allen sought to register is titled “Theatre D’opera Spatial.”
  • 4. A) The central issue is whether Allen’s use of AI tools like Midjourney to create the work precludes copyright protection.
  • 5. C) Originality, fixation & human authorship are key copyright requirements – substantial similarity relates to infringement, not initial protection.

Questions: Allen’s Arguments & USCO’s Stance

• • 1. What does Allen argue his prompt-writing process is analogous to?
    • A) An author dictating a story to a typist
    • B) A photographer setting up and capturing a shot
    • C) A film director guiding a cameraman
    • D) An artist sketching out a rough draft
  • 2. What key legal precedent does Allen rely on re: the low creativity bar for copyright protection?
    • A) Burrow-Giles Lithographic Co. v. Sarony
    • B) Feist Publications, Inc. v. Rural Telephone Service Co.
    • C) Bleistein v. Donaldson Lithographing Co.
    • D) Bridgeman Art Library v. Corel Corp.
  • 3. Which past new technology does Allen analogize the current AI issues to?
    • A) Digital cameras
    • B) Photocopiers
    • C) Word processors
    • D) Synthesizers
  • 4. On what basis does the USCO argue Midjourney undermines Allen’s authorship claim?
    • A) Midjourney did the lion’s share of the creative work
    • B) Allen didn’t control how Midjourney interpreted his prompts
    • C) Prompts are too high-level to qualify as specific direction
    • D) All of the above
  • 5. Which of the following is NOT a potential implication if Allen loses the case?
    • A) Chilling effect on artists’ use of AI tools for fear of losing copyright rights
    • B) Reduced investment in development of creative/generative AI systems
    • C) AI-assisted works fall into public domain immediately upon publication
    • D) Rampant infringement of AI works b/c no one has standing to enforce copyright

Answers: Allen’s Arguments & USCO’s Stance

• • 1. C) Allen likens his prompting process to a film director guiding a cameraman to execute his creative vision.
  • 2. B) Feist is the seminal case Allen cites for the proposition that only a “modicum” of creativity is needed for copyright protection.
  • 3. A) Allen draws parallels between the rise of digital cameras and the current emergence of AI art tools in copyright.
  • 4. D) The USCO’s denial rests on all of these arguments re: Midjourney’s role vs. Allen’s in the work’s creation.
  • 5. C) While chilling effects & infringement are risks if Allen loses, the case isn’t about AI works being public domain – no one would own them.