Video kills the radio star: Copyright and the human versus artificial creativity war

Abstract

This article contributes to the dynamic debate surrounding the intersection of artificial intelligence (AI) and copyright law, offering a fresh perspective that builds upon interdisciplinary analyses. Focusing on the cognitive processes underpinning creativity in both human and AI contexts, the study draws a detailed parallel between Vincent Van Gogh's iconic “Starry Night” and its AI‐generated counterpart generated through DeepDream technology. Central to the investigation is the application of psychological and neuroscientific theories to understand and compare the creative processes in humans and AI. Based on such exercise, the article first examines whether art generated with AI, devoid of human emotions and motivations yet capable of mimicking human creative cognitive processes, qualifies for copyright protection. The analysis suggests that the similarities between human and AI creativity, particularly in their cognitive structuring, could render the work “original” according to different jurisdictional standards and interpretation of copyright law. Second, the article investigates whether AI infringes copyright if protected material is used for its training and processing. This question becomes particularly relevant in light of recent legal actions against AI‐artwork generators in California, which raise issues of potential infringement by AI using latent diffusion techniques on existing artworks. The discussion provides an original perspective that can advance the ongoing debate on the use of copyrighted material for AI training. The paper aims to contribute to the ongoing debate about AI and copyright by challenging the traditional human‐centric view of authorship in copyright law. The article argues for a nuanced understanding that acknowledges the complex nature of creativity, transcending the binary division between human and artificial sources. This approach is critical in redefining legal frameworks, ensuring they are adaptive to the evolving landscape of AI capabilities. At the same time, the article addresses the implications of AI drawing inspiration from existing art, recognizing the need to balance different stakeholders' interests when drawing policy considerations. Ultimately, the goal is to provide a layered perspective that not only deepens the legal discourse but also respects and fosters the coexistence and mutual advancement of both human and artificial creativity in the digital age, in line with the purpose of copyright.