FOLLOW US

USA HERALD (August 27, 2025) — A Colorado man who used artificial intelligence to create an image that captured first place at a state fair art competition is pressing a federal court to recognize that his work deserves the same protection as photographs or other technology-assisted creations.

Jason Allen, the artist behind the widely discussed “Théâtre D'opéra Spatial,” argued in a motion for summary judgment that the U.S. Copyright Office is unfairly applying its standards to block works with AI involvement while long permitting creators using cameras, cellphones, or digital tools to secure copyrights.

Allen emphasized that authorship does not vanish simply because an artist incorporates technology that generates unexpected results. “Randomness and unexpected outcomes are often an integral part of the creative process,” he wrote, insisting that his use of more than 600 Midjourney prompts and his subsequent manual refinements meet the low threshold of originality established by the Supreme Court.

His filing draws on the 1884 Supreme Court precedent in Burrow-Giles Lithographic Co. v. Sarony, which confirmed photographer Napoleon Sarony as the author of a photograph of Oscar Wilde despite not personally operating the shutter. Allen argues that if Sarony’s staging and mental conception qualified as authorship, then directing an AI system through hundreds of prompts should likewise qualify. He warns that the Copyright Office’s stance would have denied Sarony’s claim in the 19th century.

The Copyright Office has remained firm that works generated by Midjourney and enhanced with Gigapixel AI do not meet the definition of copyrightable authorship. A spokesperson declined to comment on Allen’s motion, but the agency is defending its position through the Department of Justice. The case, Allen v. Perlmutter, is pending in the U.S. District Court for the District of Colorado.

Case Briefing

• Allen is urging the court to equate AI-assisted art with camera-based works under copyright law. • He generated his award-winning piece through more than 600 prompts before applying manual edits. • The outcome of Allen v. Perlmutter could shape how federal agencies define authorship in the AI era.

The Copyright Act never strictly defined “author” with reference to tools, leaving courts to stretch its meaning as technology evolves. The key legal framework here is the originality standard, which the Supreme Court has consistently set at a very low bar — a modicum of creativity is sufficient.

Allen’s procedural posture is a motion for summary judgment, which asks the court to rule on the law without trial if no material facts are disputed. His reliance on Burrow-Giles is strategically sound: that case illustrates the Court’s unwillingness to strip authorship merely because mechanical or technological intermediaries were involved.

The Copyright Office’s position forces a court to decide whether AI-prompting is closer to pressing a shutter or whether it crosses into a realm where human originality is too attenuated. If Allen prevails, federal practice on AI art registration will have to adjust quickly.

Allen is backed by attorneys Ryan Abbott and Timothy Lamoureaux of Brown Neri Smith & Khan LLP, while the Copyright Office’s defense is being led by DOJ lawyer Jenna Munnelly.

The matter is docketed as Allen v. Perlmutter, No. 1:24-cv-02665, in the U.S. District Court for the District of Colorado.