Tamara S. Pester, LLC
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| Midjourney Image | The Work |
In his Second Request, Mr. Allen asserts a number of arguments in support of his claim. He argues that his use of Midjourney allows him to claim authorship of the image generated by the service because he provided “creative input” when he “entered a series of prompts, adjusted the scene, selected portions to focus on, and dictated the tone of the image.” Id. at 4. As explained in his correspondence, Mr. Allen created a text prompt that began with a “big picture description” that “focuse[d] on the overall subject of the piece.” Allen Sept. Creation Explanation. He then added a second “big picture description” to the prompt text “as a way of instructing the software that Mr. Allen is combining two ideas.” Id. Next, he added “the overall image’s genre and category,” “certain professional artistic terms which direct the tone of the piece,” “how lifelike [Mr. Allen] wanted the piece to appear,” a description of “how colors [should be] used,” a description “to further define the composition,” “terms about what style/era the artwork should depict,” and “a writing technique that Mr. Allen has established from extensive testing” that would make the image “pop.” Id. He then “append[ed the prompt] with various parameters which further instruct[ed] the software how to develop the image,”[1] resulting in a final text prompt that was “executed … into Midjourney to complete the process” and resulted in the creation of the Midjourney Image above. Id.[2]
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. Although Mr. Allen describes “input[ing] numerous revisions and text prompts at least 624 times” before producing the Midjourney Image, Allen Sept. Creation Explanation, the steps in that process were ultimately dependent on how the Midjourney system processed Mr. Allen’s prompts. According to Midjourney’s documentation, prompts “influence” what the system generates and are “interpret[ed]” by Midjourney and “compared to its training data.”[3] As the Office has explained, “Midjourney does not interpret prompts as specific instructions to create a particular expressive result,” because “Midjourney does not understand
- ↑ Midjourney permits users to add “parameters” to a text prompt to control aspects of what is generated, such as an image’s aspect ratio or how much computing time is spent to generate the image. See Midjourney, Parameter List, https://docs.midjourney.com/docs/parameter-list (last visited Sept. 5, 2023).
- ↑ Mr. Allen declined to disclose any specific prompt on the grounds that “specific string of prompts and inputs are confidential.” Allen Sept. Creation Explanation. Mr. Allen has not sought copyright protection for his prompts and inputs. Nor could the Board consider whether the prompts themselves were sufficiently creative to be independently protected by copyright since Mr. Allen has not disclosed them.
- ↑ See Midjourney, Prompts, https://docs.midjourney.com/docs/prompts (last visited Sept. 5, 2023).
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