AILA hosts local Art Lawyer, Kate Lucas
Writeup by: Caitlin Kennedy Downey, AILA
The intersection of artificial intelligence and creative production is forcing society to revisit some of the most fundamental questions in copyright law: Who, or what, can be an author? What is the distinction between the “expression of an idea” and what is just an idea?
Copyright law has long protected the author of the expression of an idea, not the idea itself. Its purpose is to provide artists, inventors, and writers with a profit motive to keep creating! But as AI systems take on more of the creative process, these foundations are being challenged. If machines don’t need profit as motivation, do our traditional legal and economic systems still make sense?
Recent court rulings have made clear that an “author” must be human and for a work to be copyrightable, the human creator must contribute more than just the idea behind it. The author must meaningfully shape the expression of that idea. In other words, AI can be a tool, but not the creator of the creative expression.
During the discussion, Niko reflected on how artists have always experimented with new tools and technologies, from photography to digital media, continually redefining what counts as skill or originality. He noted the irony of courts debating the “originality” of artists like Andy Warhol, suggesting that legal debates often miss the spirit of artistic experimentation.
Kate emphasized that while experimenting with AI as an artistic tool, documenting one’s creative process has become more important than ever. Some artists are now recording every prompt, iteration, and revision to demonstrate the human creativity involved in their AI-assisted work. One artist that Kate used as an example used over 600 prompts to produce the creative output he had envisioned! This documentation may serve as evidence of authorship and help preserve artists’ rights in a rapidly changing creative landscape.
Mark raised broader concerns about the “pace and scale” of technological change, warning that by the time the courts catch up, the technology may have already moved on. Kate agreed, describing the situation as a “failure of judgment made law.” The legal system, she noted, simply cannot keep pace with the speed of AI development.
Ultimately, the discussion underscored that AI is both a challenge and an opportunity for our world’s creators. It invites us to rethink not only how we define art and authorship but also how our legal and economic systems can adapt to a world where human and machine creativity increasingly intertwine. Technology will continue to evolve and our understanding of creativity, authorship, and ownership must evolve with it.