It has long been taken for granted that creativity is a uniquely human ability. Copyright doctrine, designed to incentivize creativity,1 is built on such an assumption. New, sophisticated forms of artificial intelligence (AI) have the potential to challenge the fundamental premise that only humans can create. Such a shift stands to threaten key underpinnings of the existing intellectual property (IP) regime, which is designed to create incentives for human innovation.2 The potential for AI to disrupt copyright law can already be seen in early battles over what constitutes “fair use” when training AI models,3 whether AI models can be considered sole “authors” of the work they generate,4 and even who would be liable (the AI user or the AI model’s company) in the event of infringement.5
While AI poses endless questions for broader IP doctrine, this Chapter explores AI’s variable impact on how different artistic communities conceive of creativity and interact with the existing copyright regime. When faced with this transformative technology, many artists who have historically enjoyed copyright protections encounter what we term the “double bind” — a simultaneous desire to embrace AI for its potential and a fear of AI’s capacity to replace artists. But while creativity is assumed across a wide range of fields — from writing and photography to choreography, comedy, and even cooking and gardening — only some types of creators qualify for IP protection.6 Depending on the level of IP protection creators have historically enjoyed, the introduction of AI can either be a “seismic disruption[]”7 or just another hole in the already-riddled fabric of the copyright regime. Creative communities with less established relationships to copyright doctrine have more space to navigate this double bind and to explore AI’s creative potential. By examining case studies from different creative communities, this Chapter synthesizes lessons for traditional IP beneficiaries to learn from less-protected creators, and vice versa, to navigate the double bind that AI poses. As AI is both a nascent and continuously evolving technology, much of its legal impact on the copyright regime and its practical impact on creators remains to be seen.
First, this Chapter provides a brief overview of the relevant requirements of, and motivations underlying, the current copyright regime. Then, it analyzes the recent Writers Guild of America (WGA) writers’ strike to explore how profit and labor incentives have guided the use of AI in the entertainment industry and to demonstrate how writers were able to use private negotiations to thread the double bind that AI posed. As a comparison, this Chapter then focuses on choreographers and comedians as case studies of less protected creators to demonstrate how the implicit “humanity” requirement of such art forms, along with the limited relevance of IP protections in these fields, dull artists’ concerns about AI supplantation and free them of that double bind. In conclusion, this Chapter argues that each of these differentially protected groups can learn from each other, sketching out different tools that artists can use to navigate the double bind that AI introduces into these creative fields.
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