The closely watched Allen v. Perlmutter case asks whether prompt engineering constitutes authorship of artificial intelligence-generated works. Allen applied for copyright protection for an award-winning pictural work, “Théâtre D'opéra Spatial,” that he created using prompts on Midjourney AI generator and then edited. The Review Board of the Copyright Office explained that Allen described his actions as including “input[ing] numerous revisions and text prompts at least 624 times,” but that Allen declined to disclose specific prompts on confidentiality grounds. The Board ultimately determined that AI created more than a de minimis amount of the work and therefore required its contribution to be disclaimed in the application. Allen chose not to disclaim the AI-generated material, and therefore his registration was denied as submitted. 

Allen then filed a district court action challenging the denial. In late August he moved for summary judgment, urging the Court to find that a work generated by human creativity using AI as a tool is copyrightable. The Court's resolution of this motion could significantly impact the development of copyright law relating to AI generated works. If it finds Allen to have copyright in the work even though he chose not to disclaim the AI-generated material, that would seemingly mean he has copyright over creative aspects he may not have contemplated or specifically called for in his prompting of the AI generator.  The flexibility of copyright law has allowed authors to claim copyright in new types of creative works enabled by technology developments, such as photographs and computer programs. But generative AI creates new challenges because creative aspects of the work may be wholly created by the AI generator. While artists creating works using generative AI systems should be entitled to copyright protection for the aspects of the work they create, should they also own copyright in creative aspects the AI system generated on its own in response to the prompts?  

The Copyright Office has drawn a line between AI-generated materials and AI-assistive use. In its view, AI-generated materials do not have a human author and therefore cannot receive copyright protection. However, the Office views works created with assistive use of generative AI as copyright protected, with the copyright protection commensurate with the creative expression of the author. In the assistive-use scenario, the author must disclose and disclaim the AI-generated material. By May, the Office had issued over a thousand registrations for works where applicants disclaimed AI-generated material. This gives authors copyright over their creative choices, but the copyright does not reach aspects of a work where AI is the source of the expressive choices. 

Some bright lines in the law seem to be quickly emerging, such as an AI system not qualifying as authors under the Copyright Act. But it will be some time before controlling precedent develops clarifying the nuances of authorship and copyright in the age of generative AI. In the interim, creators should carefully consider which aspects of their works are protectable and how to disclose and disclaim AI-generated aspects of works to support copyrightability. A considered registration strategy can provide valuable protection for the author's creative expression while navigating the Copyright Office's requirements.