Log in
In 2022, Jason Allen outraged artists around the world when he won the Colorado State Fair Fine Arts Competition with a piece of AI-generated art. A month later, he tried to copyright the pictures, got denied, and started a fight with the U.S. Copyright Office (USCO) that dragged on for three years. In August, he filed a new brief he hopes will finally give him a copyright over the image Midjourney made for him, called Théâtre D’opéra Spatial. He’s also set to start selling oil-print reproductions of the image.
A press release announcing both the filing and the sale claims these prints “[evoke] the unmistakable gravitas of a hand-painted masterwork one might find in a 19th-century oil painting.” The court filing is also defensive of Allen’s work. “It would be impossible to describe the Work as ‘garden variety’—the Work literally won a state art competition,” it said.
“So many have said I’m not an artist and this isn’t art,” Allen said in a press release announcing both the oil-print sales and the court filing. “Being called an artist or not doesn’t concern me, but the work and my expression of it do. I asked myself, what could make this undeniably art? What if I could create Théâtre D’opéra Spatial as if it were physically created by hand? Not actually, of course, but what if I could achieve that using technology? Surely that would be the answer.”
Allen’s 2022 win at the Colorado State Fair was an inflection point. The beta version for the image generation software Midjourney had launched a few months before the competition and AI-generated images were still a novelty. We were years away from the nightmarish tide of slop we all live with today, but the piece was highly controversial and represented one of the first major incursions of AI-generated work into human spaces.
Théâtre D’opéra Spatial was big news at the time. It shook artistic communities and people began to speak out against AI-generated art. Many learned that their works had been fed into the training data for these massive data hungry art generators like Midjourney. About a month after he won the competition and courted controversy, Allen applied for a copyright of the image. The USCO rejected it. He’s been filing appeals ever since and has thus far lost every one.
The oil-prints represent an attempt to will the AI-generated image into a physical form called an “elegraph.” These won’t be hand painted versions of the picture Midjourney made. Instead, they’ll employ a 3D printing technique that uses oil paints to create a reproduction of the image as if a human being made it, complete—Allen claimed—with brushstrokes.
“People said anyone could copy my work online, sell it, and I would have no recourse. They’re not technically wrong,” Allen said in the press release. “If we win my case, copyright will apply retroactively. Regardless, they’ll never reproduce the elegraph. This artifact is singular. It’s real. It’s the answer to the petulant idea that this isn’t art. Long live Art 2.0.”
The elegraph is the work of a company called Arius which is most famous for working with museums to conduct high quality scans of real paintings that capture the individual brushstrokes of masterworks. According to Allen’s press release, Arius’ elegraphs of Théâtre D’opéra Spatial will make the image appear as if it is a hand painted piece of art through “a proprietary technique that translates digital creation into a physical artifact indistinguishable in presence and depth from the great oil paintings of history…its textures, lighting, brushwork, and composition, all recalling the timeless mastery of the European salons.”
Allen and his lawyers filed a request for a summary judgement with the U.S. District Court of Colorado on August 8, 2025. The 44 page legal argument rehashes many of the appeals and arguments Allen and his lawyers have made about the AI-generated image over the past few years.
“He created his image, in part, by providing hundreds of iterative text prompts to an artificial intelligence (“AI”)-based system called Midjourney to help express his intellectual vision,” it said. “Allen produced this artwork using ‘hundreds of iterations’ of prompts, and after he ‘experimented with over 600 prompts,’ he cropped and completed the final Work, touching it up manually and upscaling using additional software.”
Allen’s argument is that prompt engineering is an artistic process and even though a machine made the final image, he says he should be considered the artist because he told the machine what to do. “In 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,” a 2023 review of previous rejections by the USCO said.
During its various investigations into the case, the USCO did a lot of research into how Midjourney and other AI-image generators work. “It is the Office’s understanding that, because Midjourney does not treat text prompts as direct instructions, users may need to attempt hundreds of iterations before landing upon an image they find satisfactory. This appears to be the case for Mr. Allen, who experimented with over 600 prompts,” its 2023 review said.
This new filing is an attempt by Allen and his lawyers to get around these previous judgements and appeal to higher courts by accusing the USCO of usurping congressional authority. “The filing argues that by attempting to redefine the term “author” (a power reserved to Congress) the Copyright Office has acted beyond its lawful authority, effectively placing itself above judicial and legislative oversight.”
We’ll see how well that plays in court. In the meantime, Allen is selling oil-prints of the image Midjourney made for him.
