You might remember when a partially AI-generated artwork won first place at a state fair fine arts competition back in 2022, and everyone got pissed.
The artist, Jason M. Allen, reportedly spent over 100 hours creating the piece, Théâtre d’Opéra Spatial, using a combination of Midjourney AI, Photoshop, and Gigapixel AI. He said he generated hundreds of initial images before selecting and refining the final submission. Despite his disclosing his use of AI to the judges, they were apparently unaware of that fact—which kicked off a big debate at the time about the role of AI in art creation, whether it’s a legitimate art form or whether it’s basically theft, etc. etc.
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“This isn’t going to stop,” Allen famously told the New York Times. “Art is dead, dude. It’s over. A.I. won. Humans lost.”
Following his state fair win, Allen submitted a copyright application for Théâtre d’Opéra Spatial to the U.S. Copyright Office. However, the Copyright Office refused to copyright the image, saying it contained an “inextricably merged, inseparable contribution” from both Allen and Midjourney. This is consistent with other decisions they’ve made.
Allen requested the Copyright Office to reconsider his application multiple times, which they kept rejecting until the Copyright Office Review Board made a final determination: no, seriously, Théâtre d’Opéra Spatial wasn’t eligible for copyright protection.
Now, Allen says people are “blatantly and repeatedly stealing” his art. People are selling Théâtre d’Opéra Spatial without compensation or credit on sites like Etsy and OpenSea. And he’s pissed off about it.
In a lawsuit filed in September 2024, Allen is asking a Colorado federal court to reverse the Copyright Office’s decision. He argues that a Copyright Examiner “may not even be able to distinguish an artwork that used AI tools to assist in the creation from one which does not use any computerized tools, thus making the review process entirely arbitrary.”
Highlighting the time and effort that Théâtre d’Opéra Spatial required—and the fact that digital tools like Photoshop are now integrating AI—Allen says he is standing up to protect his rights to express himself using generative AI tools.
He estimates that unauthorized use of his artwork has lost him “several million dollars.”
