AI & IP

Throughout history, artists have borrowed and built on existing ideas, aesthetics and events and created new works of art. Never in a vacuum; writers, musicians have always been inspired and influenced by one another, each one adding to the collective Human culture at large. Now AI is here, the ultimate appropriator, generating unique content by remixing vast datasets. With AI-created works increasingly indistinguishable from Human-made ones, traditional copyright laws cannot keep up. As AI reshapes creativity, the article suggests we may eventually need to rethink or even abandon the notion of intellectual property altogether.

AI Professional Development – Fiona Passantino, 11 MAR 2025

Cubist battles

In 1915, Diego Rivera accused Pablo Picasso of stealing elements of his work in Zapatista Landscape as well as other of his innovations from Man Seated in Shrubbery.[i] Rivera and Picasso belonged to a group of rebellious artists at the beginning of the 20^th century who lived, worked and partied together as they moved around France and Spain or the islands in search of inspiration. They went to the same bars, ate in the same restaurants and shared many of the same women. Unsurprisingly, much of their creative work closely resembled one another as they all began exploring different aspects of a similar idea: Cubism.

Despite their similarities, each individual artist felt ownership of the sanctity of their own work. When Rivera accused Picasso of “stealing” from him, it ended the close friendship between these two men and caused Rivera to leave Cubism for good and return to Mexico.

“Good artists copy,” Picasso was believed to have said. “Great artists steal.”

Since the beginning of our history, Humans have been the sole creators of all works of art or literature, and our laws have been set up accordingly. The painter paints, the writer writes, podcasters… well, pod, and all this content is fiercely protected from other Humans attempting to claim it for their own.

Our legal system is built on defining the fuzzy lines that separate an artist and an appropriator, simply because we have monetized the creation of art and turned it into a commodity. This is so beautifully, visually, explained by artists such as Andy Warhol and Jeff Koons, both great idea-stealers in their time.

Art Used to be Human…

Centuries ago, art was a thing Humans made with their hands; the sculptor could pound at a lump of marble and produce one standing Zeus at a time, representing years of manual labor and thousands of tiny creative micro-decisions along the way. A painter could sit in a field of sunflowers and create one work of art.

Woodcuts and lithographs still represented hand-created art but allowed for multiple copies of the original, making art more widely available. The invention of photography and film further increased the ability to reproduce and access art images.

Digital photography produces no negative. A ‘RAW’ file comes close; this is an image file stored on a camera or smartphone memory card, which represents the pure, unfiltered, unaltered image captured by the Human photographer.[ii] Minimally processed and uncompressed, this is as original as it gets.

Digital art got truly weird with the introduction of the NFT or ‘Non-Fungible Token’ which attempts to establish a unique identifier for the RAW file, ensuring its closeness to the artist. NFTs are traded on open markets the way one would do an oil painting with varying degrees of credibility.

AI content is fully digital generative. And while each output is unique, it is too far removed from the Human artist (or ‘prompter’) for that Human to claim it as their own.

If ‘art’ then, is defined as an expression of Human intent – since we can no longer consider uniqueness, physicality, reproducibility or 100% Human execution – then an AI tool is not an artist.[iii] Until it outperforms Humans in terms of its ability to produce emotional and though-provoking work that causes a Human to have an emotional or intellectual reaction. Or, with the rise of Agentic AI, when it creates alone, prompt-free. Then the conversation becomes complex indeed.

Copyright: a Thing of the Past?

In general, the jury is still out on the validity of copyright in an AI age. But one legal system at a time has been returning a verdict of ‘no contest’. Simply because a model isn’t doing anything that Humans don’t do themselves, which is looking at freely available material for inspiration and collating together its own version. It just does it in an all-seeing, everything-everywhere-all-at-once,[1] way, faster, and with perfect memory.

With models doing the bulk of the creation and execution, the ‘work’ is determined by the technology and the vastness of the dataset, not the Human user, and ownership therefore cannot be assigned.[iv] AI-created images aren’t currently protected by copyright law according to US Copyright Office and European, Asian and British law is reaching similar conclusions.[v] AI labs using copyrighted material to train their models are, in certain cases and in certain countries, required to disclose and seek permission to use works by professional content creators.[vi] But that’s where our current legal system ends in terms of AI-Human IP.

If we think of IP as a spectrum disorder or sliding scale, just like the construct of gender or the presentation of neurodiversity, each of us appears on the AI-IP sliding scale somewhere. On the one end is the idea that ‘every-thought-is-sacred-and-came-from-a single-Human-source-birthed-alone[2]’ which defines our traditional IP thought process. At the other end is the notion that ‘there-is-no-IP-all-ideas-belong-to-the-creative-commons’. We cannot claim it, so we therefore cannot protect it. Our job in this AI age is to consider where on this spectrum we fall and live accordingly.

The Future; IP Free?

In this era of the rise of non-Human creative intelligence, we may find ourselves in a transition phase on the way to eventually abandoning the idea of copyright altogether, since it will become unsustainable within the context of our creative society as generative tools penetrate ever deeper into our own creative processes.

We have always stood on the shoulders of those before us. We have always borrowed, appropriated and improved upon existing ideas, molded them in our image, and called them our own. The advance of generative AI might relax our white-knuckled grip on our view that an idea, made of the wispy threads of a thought, a vision, can ever truly belong to any one Human. We may find that we can neither claim ownership of an idea nor protect our own from being scraped in the big world, once it’s ‘out there’.

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[1] The phrase ‘Everything Everywhere All at Once’ stolen from the film of the same title produced by Russo, Larocca, Kwan, Scheinert, Wang and written, directed by Kwan & Scheinert, starring Michelle Yeoh, Stephanie Hsu, Ke Huy Quan, James Hong and Jamie Lee Curtis (2022). IAC Films, Gozie AGBO, Year of the Rat, Ley Line Entertainment.

[2] The phrase ‘Every Thought is Sacred’ borrowed from the original ‘Every Sperm is Sacred’ musical number in the 1983 Monty Python’s ‘The Meaning of Life’ film, Directed by Terry Jones, written by starring actors Graham Chapman, John Cleese, Terry Gilliam, Eric Idle, Terry Jones and Michael Palin. Produced by John Goldstone

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[i] Poundstone (2016) The Fight That Broke Apart Cubism. Blogger. Accessed June 30, 2023. http://lacmaonfire.blogspot.com/2016/12/the-fight-that-broke-apart-cubism.html

[ii] Norah (2023) “What Is Raw in Photography, and Why Should You Shoot in Raw?” Finding the Universe. Accessed July 11, 2023. https://www.findingtheuniverse.com/what-is-raw-in-photography/

[iii] Chatterjee A. (2022). “Art in an age of artificial intelligence” Frontiers in Psychology, 13, 1024449. https://doi.org/10.3389/fpsyg.2022.1024449

[iv] Holt (2023) “AI-generated images from text can’t be copyrighted, US government rules” Engagit. Accessed June 30, 2023. https://www.engadget.com/ai-generated-images-from-text-cant-be-copyrighted-us-government-rules-174243933.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAA0nq2zgObYhmLZQSlTtsPR1TJ7r1R2NSzsWJ9It96KlQRKXEqKS5xDEKHLCKnTlaQC0EiI5V0vMJaypR5R7YzRTqJBYGuZV0t9itJdZazEnd07pfXQJI2rHSDqtI7m0IBVNQqAxaMNoURo7rDytpR3nGXyta53lBUt-9QSfmKkh

[v] Novak (2023) “AI-Created Images Aren’t Protected By Copyright Law According To U.S. Copyright Office” Forbes Magazine. Accessed June 17, 2023. https://www.forbes.com/sites/mattnovak/2023/02/22/ai-created-images-in-new-comic-book-arent-protected-by-copyright-law-according-to-us-copyright-office/

[vi] Chee, Coulter, Mukherjee (2023) “EU proposes new copyright rules for generative AI” Reuters. Accessed June 30, 2023. https://www.reuters.com/technology/eu-lawmakers-committee-reaches-deal-artificial-intelligence-act-2023-04-27/