If you follow copyright matters, it would be impossible not to read commentary proclaiming either that copyright is “dead” in the age of artificial intelligence or that confronting AI exposes copyright’s philosophical underpinnings as a convenient fiction. There is nothing new about copyright skeptics claiming that its humanist principles are a fiction, but now that machines can produce material that walks and talks like “works of expression,” this brave new world animates a lot of intellectual discussion beyond the normative question What is copyrightable? to the philosophical question What is copyright?
The Copyright Office has asserted, and the courts have thus far affirmed, that material generated entirely by AI is not a “work of expression,” a.k.a., not a “work of authorship,” because some degree of human creativity must exist in the work. That human-centric principle, combined with the low threshold of “originality” in American copyright law, undeniably conjures both metaphysical inclinations about creators and semantic imperfections in law describing the rights of creators.
For longer than the current copyright law has existed, doctrines, arguments, debates, and case law have been expressed in subjective and emotional terms like invention, genius, spark, personality, mental conception, and a rich lexicon of synonyms for creative balanced by myriad ways to describe that which is uncreative. And all that is matched with variations on the theme of the creator’s right to earn a living balanced with societal benefits derived from fostering a community of professional creators.
Of course, subjective or rhetorical language is not a unique feature of copyright. All law is expressed in words, and it is, therefore, a dangerous enterprise—indeed we are watching this peril unfold in real-time—to argue that rhetoric alone undermines, inverts, or swallows the principles expressed in law. It is only natural that semantic difficulties run amok in the AI debate, frustrating legal analysis and theory. After all, the term artificial intelligence is itself a convenient analogy onto which the industry and its advocates have grafted their own lexicon of self-serving, often anthropomorphizing, rhetoric (see Sonja Drimmer A Dictionary of AI).
Meanwhile, even if we omit the pejorative neologism “AI slop,” whatever term we choose to describe that which AI produces, those outputs are not easily defined either by the familiar rhetoric or terms of art in copyright law. For instance, most experts will generally agree that the constitutional foundation for IP is incentive to “authors” to create, but if machines create some of the same stuff without incentive, does this a) obviate the need for copyright? or b) point to an underlying fallacy that the incentive purpose of copyright is, or always was, a rhetorical fiction?
AI Challenges the Underlying Humanism in Copyright?
Because confronting AI generated works has lately induced the Copyright Office and the courts to reaffirm the human authorship doctrine—and especially because the line between generative AI and assistive AI implies both doctrinal and administrative difficulties—this provides a fresh opportunity for skeptics to assert that U.S. copyright law is not human-centric in the first place. “Instead of a formalist rejection of AI assisted works, copyright should be willing to take up a truly humanist set of goals and answer difficult questions regarding its efficacy in promoting them for the last one hundred years,” writes Professor Matt Blaszczyk in a new paper titled Post Human Copyright: AI, Copyright and Legitimacy.
From its title and abstract, I assumed Blaszczyk’s aim was to reject the human authorship doctrine in support of a case for the copyrightability of all material autonomously generated by artificial intelligence (AI). Although the paper could be cited to support that view, if I understand Blaszczyk correctly, he argues that confronting AI exposes an underlying fallacy that copyright has not served human authors for the last century and, therefore, needs reexamination to restore the humanist principle. He writes:
This Article argues that the USCO and the courts have recognized the requirement of human authorship and couched it in humanist rhetoric to preserve copyright’s legitimacy at a time of crisis, thus strengthening the institutional actors: the Office, the courts, and rightsholders….for copyright to be truly humanist, the law should refocus the doctrine and economic distributions on human, rather than corporate authors, adjust to new technological landscape, and reflect on its own purpose and efficacy.
Thus, Blaszczyk claims to want to rescue copyright’s true humanism from the mere rhetoric of humanism. But if that is the goal, his paper offers frail and unsupported premises to show that human-centric copyright is purely a creature of rhetoric. To be sure, the U.S. Copyright Act could be more author-centric—e.g., it could require attribution the way other nations’ copyright laws do—but tensions in copyright, or any other area of law, do not necessarily expose the core principles as mere illusions conveyed through “romanticism,” as Blaszczyk asserts.[1] In fact, considering the paper’s general criticism of rhetorical devices, the reliance on rhetorical conclusions about normative copyright law are noteworthy.
For instance, regarding copyright’s incentive purpose, Blaszczyk avers that copyright does not act as an incentive to individual creators. He states that the case Allen v. Perlmutter “…allows Allen’s lawyer, Ryan Abbott, to reframe the arguments made in Thaler and in relevant scholarship. Abbott argued that “copyright protection is for corporations that invest in creative content,” and not to provide an incentive “for people like J.K. Rowling and George R.R. Martin.” If I read Blaszczyk correctly, he agrees with Abbot’s reasoning and dislikes that it leads to an anti-humanist result. He writes:
… Abbott is right to point out what critical copyright scholars have long argued: copyright “plays very little role in motivating creative work” and instead its “purpose… is to enable the provision of capital and organization so that creative work may be exploited.
Yes, some copyright scholars have argued that copyright does not incentivize creative work by individuals, but this theme always reminds me of a poll asking the wrong question. Ask artists whether they want to earn a living for their work, and it is fair to say that the majority will answer yes, even though financial incentive to write or make fine art or films etc. is one part of a nuanced interplay of sentiments for most artists. If we are going to generalize, many artists are likely to say 1) that they create because they can’t not create; 2) that they feel grateful when an audience likes their work enough to be consumers; and 3) that they do not want their works exploited by anyone without permission and/or compensation.
Ask the same group to explain the relationship between those sentiments and their copyright rights, and the answers will vary. I work with independent creators all the time and would say that naivete about copyright law and corresponding failure to register works (in the U.S.) are more significant factors disenfranchising individual creators than Blaszczyk’s claim that the incentive principle is a rhetorical fiction.
Copyright Only Serves Corporations?
Blaszczyk relies substantially on the populist conclusion that normative copyright “primarily benefits corporate owners” and, therefore, exposes the illusion that the system serves human authors. But other than criticizing corporate wealth, which is a separate matter, Blaszczyk offers no evidence or rationale to show how, say, Disney’s vast and valuable copyright portfolio alters either the purpose or application of copyright for the independent illustrator, writer, or filmmaker.
Anecdotally, a quick list of recent cases that come to mind—Brammer, Sedlik, Goldsmith, Graham & McNatt, McGucken, Griner, and Westwood—all involve independent creators enforcing their copyright rights, and mostly against corporate defendants with more money and resources. Further, the court dockets neither reflect how many claims are settled before a complaint is ever filed nor provide any measure of copyright acting as deterrent to infringement of individual creators’ rights. If anything, mass, industrial-scale infringement by tech giants, rather than protection of corporate-owned works, poses the greatest threat to copyright’s purpose in both theory and practice.
My friend Bill Westwood’s settlement with a large medical publisher is garden-variety copyright law at work—the kind of straightforward case that would never make headlines or offer details of much interest for academics to examine. But in a medical illustration career spanning more than 60 years, Westwood has enforced his copyright rights about twenty times, and there is nothing remarkable about this except that he took copyright seriously as part of his business. So, if academics want to “interrogate” the purpose of copyright on the assumption that it no longer serves human creators, they should at least estimate and reckon with the number of Bill Westwoods availing themselves of the system.[2]
Work Made for Hire Doctrine is Anti-Humanist?
Related to the assertion that copyright serves corporate interests, Blaszczyk reprises the theory that the Work Made for Hire doctrine, codified in Section 102(b), is an anti-humanist doctrine supported by legal fictions. He cites a tension arising from the combination of the human authorship requirement, the low threshold of originality, and the employer as “author” of the employees’ works and states:
Attempting to do away with this tension and to strive for the legal legitimacy of the § 201(b) framework, and for the moral and popular legitimacy associated with human centrism, the court devised the fiction of the “author in the first instance” – of which the Act’s text is silent.
As discussed in other posts, I fail to see why WMFH fosters a tension of particular concern relative to imperfections of law in general. The human authorship rule is not merely a copyright matter, as demonstrated in Naruto v. Slater, where PETA’s claim to represent the alleged maker of the “monkey selfie” failed on standing alone because nonhumans do not possess rights that can be enforced in U.S. courts.
But in the same way that no rights exist in the first instance for a monkey, rights absolutely exist in the first instance for the human creator of a work. From there, it is hardly a strenuous leap of reasoning to hold that those rights may be transferred by operation of an employment agreement or contract. Consequently, I would argue that, as applied, WMFH doctrine generally affirms rather than belies the human-centric foundation for copyright.
Further, if it is fair to read Blaszczyk’s complaint as adjacent to skepticism of corporate personhood (a sentiment I tend to share), the WMFH doctrine is better founded than other matters of corporate “humanism.” That a corporate entity can practice religion (as held in Hobby Lobby) is a more fanciful adventure through metaphysical whimsy than the idea that a corporation can be defined under the term of art “author” in the copyright act. Yet, despite my own criticism of Hobby Lobby and the political power it implies, I would not advocate that precedent as a rationale to find that the Exercise right is not human-centric.
Copyright is Unpopular?
Next, while overlooking the number of independent creators served by enforcing their rights, Blaszczyk states as a matter of undisputed fact that litigation makes copyright unpopular—i.e., that a general consensus holds that copyright enforcement is “unjust.” He writes, “Aggressive litigation tactics against infringing users – ordinary people –have turned many against copyright law, and the early 21st Century saw a development of filesharing and piracy-oriented communities and even political parties.”
First, that description is outdated. The piracy apologists of 2011 are overwritten by the AI training critics of 2025. As a critique inspired by AI, this paper should acknowledge that AI has invigorated independent creators to care about and pay attention to their rights, some for the first time. Further, even if popularity were relevant to interrogating copyright’s human-centrism, it is a glaring omission on Blaszczyk’s part to ignore the billions in tech industry funding of anti-copyright scholarship, lawsuits, briefs, and zone-flooding PR designed to make copyright unpopular in the digital age.
As a general observation, it is more accurate to say that copyright litigation, like other matters of law, will draw a spectrum of public opinion, much of which has little to do with doctrine—or even the questions presented in a case. Most often, public opinion tends to favor one party over another more than it is persuaded by legal merit, which makes those opinions of little value to academics seeking to reexamine the purpose of the law. Again, off-the-cuff examples would include Eddie Grant v. Donald Trump, Jeff Sedlik v. Kat Von D, and Lynn Goldsmith v. Andy Warhol Foundation. All three of these cases have drawn opinions from both creators and non-creators, including sentiments that either misunderstand or do not address the copyright questions at issue.
Finally, in response to Blaszczyk’s intent, I remain concerned about broad implications every time someone says that copyright is “dead” or needs wholesale reexamination on the basis that it conjures tensions that expose it as a fiction. AI poses some unique challenges to copyright law for sure, but we should be wary of calling any right a mere fiction lest we discover that, in fact, all rights may be considered fictions because they are expressed by feeble words subject to interpretation. Especially in the present climate, aberrations of law can make a mockery of underlying principles, but it would be an error to concede that such extremes transform civil rights into mere illusions. On the contrary, the present moment insists upon vigilant stewardship of core principles rather than allow whole frameworks of law to collapse into performative rhetoric.
[1] E.g., significant tension between the Establishment and Exercise clauses, even where courts might err, does not expose a fallacy in the Framer’s core reasoning in the First Amendment.
[2] One of the greatest barriers to copyright rights for independent creators is lack of understanding about their rights and the pragmatic means of enforcing them when necessary.
