The copyright community eagerly awaits an important decision from U.S. District Court for the District of Colorado.  The case is Allen v. Perlmutter, and represents another test of the Copyright Office’s so-called “Human Authorship Rule.”  Plaintiff Jason Allen, creator of the award-winning Théâtre D’opéra Spatial digital artwork, filed suit against the Copyright Office over the Office’s rejection of Allen’s application to register the copyright in his work.  Last year, Allen moved for Summary Judgment[1] in the case, and in January of this year, the Office filed a Cross-Motion for Summary Judgment.[2]  A decision on the motions is expected soon.  The purpose of this post is to provide a refresher on the case, to review some of the key analogies and arguments employed by the parties, and to consider possible outcomes at the MSJ stage and implications. 

The facts of the case are widely known and not in dispute.  Allen created his image with the assistance of Midjourney, a text-to-image generative AI tool.  In the process, he famously used 624 separate prompts to achieve his desired outcome.  The prompts apparently ranged from general prompts directing the overall subject of the piece to specific prompts specifying color, style, definition and other details.  After that, Allen used other software tools to “upscale” the image and make further desired edits and revisions.