After the Supreme Court declined to hear the case Thaler v. Perlmutter, it appears settled that AI “cannot be the recognized author of a copyrighted work.”¹ But to what extent can a human obtain copyright protection for a work they generated using AI? Allen v. Perlmutter, a case pending in the District of Colorado, may provide guidance.²

The plaintiff, Jason Allen, used an AI system called Midjourney to generate a work he titled “Théâtre D’opéra Spatial,” which won an award at the 2022 Colorado State Fair’s annual fine art competition.³ To generate the image, Allen claims to have prompted Midjourney “at least 624 times.”⁴ Allen then used Adobe Photoshop to “beautify and adjust the various cosmetic details/flaws/artifacts, etc.”⁵ Finally, he “upscal[ed] the image using Gigapixel AI” to arrive at the final product.⁶

In late 2022, Allen submitted an application for copyright registration with the U.S. Copyright Office.⁷ The Copyright Office, however, refused registration because “all of the pictorial and graphic content within the deposit is attributable to AI[.]”⁸ On appeal, the Copyright Review Board affirmed, explaining that “[i]n the Board’s view, Mr. Allen’s actions as described do not make him the author of the Midjourney Image because his sole contribution to the Midjourney Image was inputting the text prompt that produced it.”⁹

The Board’s rationale is based on earlier AI guidance issued by the Copyright Office:¹⁰

… prompts alone do not provide sufficient human control to make users of an AI system the authors of the output. Prompts essentially function as instructions that convey unprotectible ideas. While highly detailed prompts could contain the user’s desired expressive elements, at present they do not control how the AI system processes them in generating the output.

Allen’s lawsuit challenges this policy. But the Department of Justice (representing the Copyright Office) has doubled down:¹¹

That Mr. Allen provided ideas (via text prompting) and chose among a resulting assortment of AI-generated outputs does not make him the author of the Midjourney Output, regardless of the amount of effort he put into devising the prompts and picking his preferred output.”

The genesis for this policy is the notion that a party cannot claim authorship “where a commissioning party provides mere ideas or suggestions to another.”¹² Based on the Copyright Office’s professed understanding of how generative AI works, it seems that a human prompter will always occupy this role because the critical creative act — the determination of the work’s expressive elements (what the Office refers to as the “traditional elements of authorship”) — will always be performed by the AI.¹³

Put another way, it seems that in the Copyright Office’s view, AI will always be the “author” of its output, regardless of the human input it receives. This is a profound philosophical decree by a government agency, particularly considering the phrase “traditional elements of authorship” appears nowhere in the Copyright Act.¹⁴ If the court rules in favor of the Office, it could ratify this view and further limit the copyrightability of AI-produced works beyond Thaler.

The implications of this policy are profound: Marketing materials, website text, code, and myriad other professional materials may not be eligible for copyright protection if they contain more than de minimis AI output, regardless of the substance or quality of the human prompts. And while the Copyright Office ostensibly permits applicants to disclaim portions of the work generated by AI (and so obtain protection as to the remainder), in practice, it can be difficult to discern where the AI’s creative expression ends and the human’s begins.

At bottom, using AI to generate materials poses a real barrier to obtaining the benefits of copyright protection — a risk users must be aware of. As the economy races to replace human output with AI output, the court’s decision in Allen may provide additional insight into the protectability of such works.

FOOTNOTES

1. 130 F.4th 1039, 1041 (D.C. Cir. 2025) (copyright protection only extends to human-created works), cert. denied, No. 25-449, 2026 WL 568327 (U.S. Mar. 2, 2026).
2. 24-cv-2665 (WJM) (D. Colo. 2024).
3. See, e.g., Dkt. No. 1 (“Complaint”) ¶ 33.
4. See, e.g., id. ¶ 57; Dkt. No. 22-2 (“Administrative Record”) at 68.
5. Id. at 67.
6. Id.
7. Complaint ¶ 30.
8. Id. ¶ 32; Administrative Record at 23.
9. Administrative Record at 68 (emphasis added).
10. https://www.copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-2-Copyrightability-Report.pdf (last visited May 14, 2026).
11. Dkt. No. 57 at 4–5 (emphasis added).
12. Id. at 14.
13. Administrative Record at 69 (“As the Office described in its March guidance, ‘when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the ‘traditional elements of authorship’ are determined and executed by the technology—not the human user.’”) (quoting 88 Fed. Reg. at 16,192).
14. See e.g., Dkt. No. 47 (Brief of Amicus Curiae Professor Edward Lee in Support of Plaintiff’s Motion for Summary Judgment) at 1 (“Allen’s prompt-engineered image failed to satisfy the Office’s extra-statutory requirement of ‘traditional elements of authorship’ . . . . The Office’s test is contrary to the Copyright Clause and the Supreme Court’s broad interpretation of ‘authors’[.]”)

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About the Author: Ryan M. Cooney

Ryan Cooney supports clients as they establish and protect their intellectual property portfolios.