Reprinted with permission from the Nov. 14, 2025, edition of Law.com. All Content © 2005-2026, ALM, Inc.
As AI continues to rapidly evolve, so does copyright law concerning AI. “Generative Artificial Intelligence (AI) has taken the world by storm, promising to revolutionize any industry it enters. … Balancing the interest of human creators against the potential advancements offered by generative AI has become a prominent topic of debate among legal scholars and policymakers.” Gordon-Tapiero and Kaplan, “Generative AI Training as Unjust Enrichment,” 86 Ohio St. L.J. 285, 285 (2025).
In Thaler v. Perlmutter, the D.C. Circuit Court recently held that AI itself cannot be an “author” under the Copyright Act of a work generated by the AI with no human contribution. 130 F.4th 1039 (D.C. Cir. 2025), pet. for review filed, Case No. 25-449 (Oct. 9, 2025). However, Thaler left open when an AI-generated work listing a human author with human contribution may be copyrighted. It left a gap.
That gap will be addressed in Jason Allen v. Shira Perlmutter and The United States Copyright Office, Civil Action No. 1:24-cv-02665-WJM (D.Colo.) (Allen Case), which involves the Copyright Office’s legal test of authorship in the context of a work created by a person using “prompt-engineering” on an AI image generator. In August 2025, petitioner in the Allen Case filed a summary judgment motion arguing that he “exercised a very high degree of direct creative involvement in the generation” of an artistic image. Petitioner’s Motion for Summary Judgment, Doc# 41 at 4 (D.Colo. Aug. 25, 2025) (MSJ). Thus, petitioner argued that the Copyright Office was wrong in denying his copyright registration “proclaiming it ran afoul of its policy that a human being must execute the ‘traditional elements of authorship.’” In September 2025, Professor Edward Lee filed an amicus curiae brief in support of the MSJ. Doc# 47 at 1 (D.Colo. Sept. 3, 2025) (amicus brief).
Attorneys following Thaler and AI’s impact on copyright law would be well-served by examining the Allen Case. Therefore, this article discusses key arguments made in the MSJ to assist attorneys in assessing whether human input when using AI to generate a work may make that work copyrightable.
Alleged Facts and Procedural Background in Allen Case
In the Allen Case, petitioner Allen (Petitioner) used the AI tool, Midjourney, to create a two-dimensional award-winning artwork titled “Théâtre D’opéra Spatial” (Work). To create the Work, Petitioner (1) did numerous and specific prompts to select the colors, style, and era of the artwork, (2) arranged the elements in the image to represent women dressed in Victorian dresses performing opera on stage, (3) further prompted the AI to depict each performer as wearing a space helmet, and (4) also used prompts to modify the image to include a theater stage, an audience, and a window with a view of the outer world. See Plaintiff’s Complaint, Allen Case, Doc# 1 at 4-10 (D.Colo. Sept. 26, 2024) (Complaint); MSJ at 4-11.
Petitioner filed an application to register the Work with the Copyright Office identifying himself as the author of the Work. The Copyright Office requested that Petitioner’s attorney provide further details concerning “whether the uploaded work is the result of Mr. Allen’s intellectual labor, with Midjourney serving as a mere assisting instrument. Or, whether Midjourney conceived and executed the uploaded work.” Petitioner’s attorney provided such details. See MSJ at 7-11.
After initially denying registration for the Work, the Copyright Office rejected a request for reconsideration by Petitioner’s attorney on June 6, 2023. The Copyright Office cited Burrow-Giles Lithographic v. Sarony, 111 U.S. 53, 61 (1884) and, among other things, stated that the “author” of the copyrighted work is the person “who has actually formed the picture”. See MSJ at 12-13. Later, the Copyright Office also rejected a second request for reconsideration.
According to Petitioner:
The Copyright Office reiterated what it called the “Human Authorship Requirement,” but further explained as really being a lack of the “traditional elements of authorship,” as the basis for not copyrighting the work. The Copyright Office simply stated that “works of authorship … require human creation of the work.” … Providing some further detail on the decision, the Copyright Office further explained that “[i]t is the office’s understanding that, because Midjourney does not treat text prompts as direct instructions.”
MSJ at 14. Thus, regardless of Petitioner’s numerous contributions, AI was the “originator of the Work.”
Petitioner filed his complaint pursuant to the Administrative Procedure Act asking the District Court to find that the refusal to register the Work is arbitrary, capricious, an abuse of discretion, and not in accordance with law, and to order the Copyright Office to register the Work. See Complaint at 38-39. In August 2025, Petitioner filed his MSJ arguing the Copyright Office was wrong in denying his registration. See MSJ at 4. In September 2025, Professor Lee filed an amicus curiae brief in support of the MSJ, addressing the issue of whether human creators are authors of the works they generated by writing prompts—or “prompt engineering”—on AI generators. See amicus brief at 1.
In October 2025, the District Court entered a motion to stay the proceedings in the Allen Case during the government shutdown. Doc# 49 (D.Colo. Oct. 3, 2025).
The Thaler Gap
In the landmark case, Thaler v. Perlmutter, the D.C. Circuit addressed whether AI itself can be an “author” under the Copyright Act of a work autonomously generated by AI with no human contribution. See 130 F.4th 1039, 1041, 1049-50 (D.C.Cir. 2025), pet. for review filed, Case No. 25-449 (Oct. 9, 2025). In Thaler, appellant created a generative AI program named the “Creativity Machine,” which made a picture that appellant titled “A Recent Entrance to Paradise.” Unlike Petitioner in the Allen Case, appellant listed the Creativity Machine as the work’s sole author and himself as the work’s owner in the application submitted to the Copyright Office. In the section of the application labeled “Author Created,” appellant wrote “2-D artwork, Created autonomously by machine.”
As relevant to this article, the Copyright Office denied appellant’s application because “a human being did not create the work.” In support of its decision, the Copyright Office cited Burrow-Giles Lithographic v. Sarony, 111 U.S. 53 (1884). Providing a detailed historical, statutory, caselaw, and legislative analysis, Thaler at 1044-51, the D.C. Circuit affirmed the denial of appellant’s copyright application for the work. In sum, it held:
The Creativity Machine cannot be the recognized author of a copyrighted work because the Copyright Act of 1976 requires all eligible work to be authored in the first instance by a human being. Given that holding, we need not address the Copyright Office’s argument that the Constitution itself requires human authorship of all copyrighted material. Nor do we reach Dr. Thaler’s argument that he is the work’s author by virtue of making and using the Creativity Machine because that argument was waived before the agency.
The D.C. Circuit recognized that the human authorship requirement does not prohibit copyrighting work that was made by or with the assistance of AI. However, it declined to consider that issue. (“Those line-drawing disagreements over how much artificial intelligence contributed to a particular human author’s work are neither here nor there in this case. That is because Dr. Thaler listed the Creativity Machine as the sole author of the work before us, and it is undeniably a machine, not a human being.”)
The Allen Case May Fill The Thaler Gap
Petitioner’s MSJ squarely posits the issue: “Petitioner moves for summary judgment as to the legal issue alone—whether a work generated by human creativity using AI as a tool is copyrightable.” MSJ at 5. In support of his MSJ, Petitioner makes essentially five arguments.
First, Petitioner argues that copyright has two basic requirements—originality and a fixed medium of expression. Since a “fixed medium is not at issue,” the Copyright Office must have denied the registration “based on the ‘originality’ requirement given what they described as the lack of ‘traditional elements of authorship.”” Quoting from Feist Publications v. Rural Telephone Service 499 U.S. 340 (1991), he argues that Feist “stressed that ‘requisite level of creativity is extremely low; even a slight amount will suffice.’” (quoting Feist at 345). Moreover, analyzing Burrow-Giles Lithographic v. Sarony, 111 U.S. 53, 61 (1884)—which was cited by the Copyright Office, involved a photograph, and concerned the then-new technology of cameras—he argues that Sarony supports the MSJ because the petitioner in Sarony was the author:
He created a “useful, new, harmonious, characteristic, and graceful picture, and … made the same … entirely from his own original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by Petitioner, he produced the picture in suit.” Sarony, 111 U.S. at 60. In other words, the Court looked at whether creative choices had been made by the author related to machine output, rather than simply denying protection based on the technology used to make a work. Another way to conceive of it is that a Court should look for the creative elements an author controlled to grant copyright, not reasons not to.
Doc#41 at 21.
Second, Petitioner argues the Copyright Office’s “traditional elements of authorship” test is its “own invention” and undefined, and thus, “the Copyright Office engages in erroneous, arbitrary, and capricious analysis when it relies on Sarony for its determination that Allen did not himself perform any ‘traditional elements of authorship.’” MSJ at 22. Citing numerous cases, Petitioner argues that—since Sarony—courts have “further expanded, rather than contracted, the universe of copyright protection,” thereby reconfirming that all that is needed to be copyrightable “is some creative spark, ‘no matter how crude, humble, or obvious.’” (quoting Feist at 345). Therefore, Petitioner concludes: “[A]pplying Feist, Sarony, and the other authorities that set a low bar and do not make technological innovation or utilization a bar to authorship when it is used to realize one’s creative vision, Allen is the author of a protectable work. … Thus, the Copyright Office’s denial is contrary to law and internally inconsistent, requiring reversal.”
Third, Petitioner argues that the Copyright Act’s text and purpose support the fact that Petitioner is the author of a copyrightable work. MSJ at 25-28. He argues that the Act does not limit the tools that authors can use to express their creativity. Quoting the Copyright Act’s text and cases addressing statutory construction, Petitioner concludes that “the Act is designed to encourage the use of novel technologies in the creative industry. The Copyright Office cannot thus read a limitation into the Act that does not exist [e.g., the use of AI], and a limitation at odds with the Act’s text and purpose.” Further discussing the legislative history of the Copyright Act and policy directives, Petitioner posits that “Congress has been equally consistent in finding that the purpose of Copyright is to promote the generation and dissemination of works.”
He also argues that the Copyright Office’s reports and directives regarding “traditional elements of authorship” are “capricious” not only because the standard is undefined and arbitrary, MSJ at 29-30, but also because the Copyright Office “is not applying a legal test articulated by a federal court or required by the Act but rather elevating the thoughts of a Register of Copyright to constitutional authority.” Petitioner further argues that any such standard applies restrictions based on methods of creation that have been rejected by the Supreme Court and are not found in the Copyright Act. Petitioner also adds that “[a]ccidental, luck-based creation has a long history of protectability that the Copyright Office seeks to arbitrarily unravel in certain AI contexts.” “Courts have never denied photographers copyrights by claiming they have not exercised ‘sufficient control’ to dictate specific results of their photographs, so it is arbitrary for the Copyright Office to require Allen to do so.”
Fourth, Petitioner argues that—even when adhering to the Copyright Office’s own criteria—his Work is copyrightable because his creative process aligns with the Copyright Office’s stated requirements of authorship, thereby warranting reversal for being arbitrary and capricious. MSJ at 36-40. Among other things, the MSJ emphasizes that the Copyright Office acknowledged Allen’s substantial input concerning the image’s genre, tone, desired appearance, color usage, and style, demonstrating substantial creative control. “It focused again on output, not creative input, to deny copyright based on its focus on factors it never identified as being deciding… . Even if the Copyright Office’s policy was not at odds with the Act and case law, the Copyright Office has admitted in its own rendition of facts that the Work should obtain protection.”
Fifth, Petitioner asserts that the Copyright Office’s test imposes unconstitutional limitations on the concept of authorship. MSJ at 41-42. “[I]n denying Allen’s registration, the Copyright Office has contracted the definition of author far above its low floor set by the Constitution as articulated repeatedly by the Supreme Court and Congress.”
Conclusion & Takeaways
In his motion for leave to file an amicus brief in support of the MSJ, Professor Lee points out that the District Court in the Allen Case “is the first federal court to review the Copyright Office’s legal test of authorship in the context of a work created by a person using prompts—or ‘prompt-engineering’—on an AI image generator.” Doc#45 at 3 (Dist.Colo. Sept. 2, 2025).
In the amicus brief, Professor Lee even further examines the Copyright Act’s constitutional and legislative history, public policy issues, and the Copyright Office’s reports and directives. He concludes that the District Court should reverse Copyright Office’s denial of Petitioner’s registration because its decision was erroneous, contrary to the terms of the statute and Supreme Court precedent, and dismissive of copyright law’s essential accommodation “of new technologies—and new methods for people to create—in the name of progress.” amicus brief at 4.
The velocity of the law as it concerns AI’s impact on copyrights is substantial. In fact, there is a pending petition for writ of certiorari before the Supreme Court concerning the Thaler opinion, the Allen Case will proceed given the recent end of the government shutdown, and no doubt there will be other cases that explore the “gap” left open in Thaler. In the meantime, attorneys and their clients involved in the artistic and creative industries should:
- Monitor the current status of both Thaler and the Allen Case
- Review, monitor, and keep a careful record of the human input involved in the use of AI in the creative process to generate work product—since the more human input in every step of the creative process, the better chance of copyrightability.
