David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.
The theme of World IP Day this year is IP and Youth: Innovating for the Future. And one young IP expert trying to shape a better future for the next generation of creators is Terrica Carrington, VP of Legal Policy and Copyright Counsel at Copyright Alliance. With a passion for social justice, Terrica focuses a great deal of her energy and talent on broadening the copyright system to serve a more diverse range of creators—especially young creators of color.
In January, Terrica was presented by the Washington Area Lawyers for the Arts with the G. Hamilton Loeb Award for Pro Bono Excellence for her work supporting the arts; and among her many other activities, she co-hosts a series of panel discussions called Black in Copyright in collaboration with Copyright Alliance, the Copyright Society, and the Young Lawyers Division of the Black Entertainment & Sports Lawyers Association.
Episode Contents
01:47 – Why copyright law?
04:40 – Working in public policy.
07:30 – Public policy and interest in social justice.
Mickey Osterreicher, general counsel for National Press Photographers Association (NPPA), wrote an open letter to Senator Josh Hawley of Missouri telling him to stop using a photograph on tee shirts and other campaign merchandise. You know the photo. The one of Hawley raising a fist of solidarity to a mob of knuckle-dragging seditionists shortly before many of them stormed the Capitol on January 6th. Captured by Politico staff photographer Francis Chung, Hawley’s merch reproduces the image with the senator cut out of the background, posterized in gray tones, and accompanied by the slogan “SHOW-ME STRONG!” (Yikes). Osterreicher’s letter begins…
Stop merchandising a widely published photo taken before the storming of the U.S. Capitol on Jan. 6, 2021, showing you clenching your fist in support of the mob. Stop being part of a long line of celebrities and politicians who think they can misappropriate images and music created or owned by others without permission, credit or compensation.
Professor of law Brian Frye disagrees. In a tweet posted early this week, Frye first assures readers that he is no fan of Hawley but then states that Osterreicher’s complaint is “ridiculously wrong.” He writes …
Yes, whoever owns the copyright in the photo is entitled to control its use, in order to generate profit. But their rights are limited by the fair use doctrine, which says that people are entitled to use the copyrighted works in order to criticize them … Josh Hawley is using a very well-known photograph of himself to criticize people who criticize him for supporting the January 6th rioters. That is precisely the kind of use the fair use doctrine was intended to protect. In fact, it is the kind of parodic use that the founding father sues to criticize loyalists in the Federalist Papers.
Most of the attorneys I know are reluctant to opine about even hypothetical cases without full knowledge of the facts, but not much more information is needed in this instance for this non-attorney to say that Frye makes at least one assumption that implies an error of fact, which serves as the basis for his multiple errors of law. The argument that Hawley’s merchandise expresses criticism of those of who scorn the senator for his conduct is razor thin in general and beside the point as a fair use consideration.
Any ordinary observer would perceive Hawley’s merch as conveying the same thing the prospective buyers of that merch see in the original photo—a man they revere for showing support for the 1/6 insurrection. That those observers see “hero” while many others see “traitor” has nothing to do with Hawley’s campaign minions adding new expression to the original work such that it would favor a finding of fair use under the first factor analysis for transformativeness. By reproducing the photograph to make and distribute derivative works (i.e., violating three exclusive rights under §106), Hawley has not imbued the image with new meaning within the context of the first prong of the fair use test.
Bizarrely, Frye’s “criticism” rationale would require that Hawley perceive the original photograph as intrinsically conveying “Hawley as traitor” and that the senator’s use of the work intentionally alters the original meaning in order to convey “Hawley as hero and mocking those who criticize him for supporting 1/6.” This is absurd on its face. These opposing perceptions of Hawley are brought by the observers to the image, and Frye is applying an eye-of-the-beholder consideration where it does not belong while inserting the word parody, where it does not apply.
Parody, if it exists at all, must target the work at issue, and not some other subject matter, in order for a use to weigh in favor of fair use. Ditto criticism, commentary, reportage, etc. It is a subtle distinction that confuses a lot of people, though I suspect Frye is expressing his opinion more than revealing any confusion on the matter. As a simple example, if a news organization produces a story about photographer Francis Chung and the moment this photo was taken, then use of the image to illustrate the story would favor a finding of fair use. On the other hand, if the news organization is strictly reporting about Sen. Hawley in general, or his conduct on 1/6, use of the photograph would ordinarily require permission.
Further, Frye misstates the commercial consideration when he uses the word profit as the exclusive interest of the copyright owner. He may wish the exclusive rights of the copyright owner were this narrow, but they are not. A more correct word would be gain. If the party making use of the work gains materially from the use—and seeking career advancement as a politician is a form of gain—any court considering the matter would correctly identify Hawley’s use as commercial, which disfavors a finding of fair use. This would be true even if Hawley’s political operation were giving the merch away for free, which of course, it is not. So, the use is commercial in every sense regardless of “profit.”
Frye compounds these errors of copyright law by implying in his statement that Politico’s enforcement in this instance is being used to stifle Hawley’s speech. He joins other copyright critics in alleging the abuse of copyright law to “shut people up.” And he obviously means it because he doesn’t like Hawley any more than I do. But this is another subtlety often missed or elided about copyright in this context: copyright rights do not preclude a party from speaking but rather preclude a party from using the owner’s expression to speak on their behalf. Because copyright critics fundamentally reject many foundations of copyright rights, they cannot bring themselves to acknowledge that unlicensed use of works can amount to coerced speech, which is itself an infringement of the speech right.
When you believe that copyright law is inherently a form of censorship, it produces some untenable interpretations of fair use. Just because the First Amendment is an underlying rationale for the fair use doctrine, this does not mean that all protected speech favors a finding of fair use. If this were so, the multi-factor fair use analysis would hardly be necessary since protected speech is almost limitless. Frye et al. may advocate this view, but it is not doctrine and never has been.
The image of Hawley itself is blood boiling. A U.S. Senator saluting a 21st Century legacy of the mob James Madison feared—endorsing a dangerous lie to animate a riot which, if successful, would end the constitutional order of the United States. That Josh Hawley happens to be a graduate of Yale Law School—hallowed ground of the Puritan-to-Federalist origins of the country—adds an extra layer of Where the fuck are we? to his emblazoning that image of himself onto cammo pattern beer koozies. I cannot reconcile all that in this post, but at least I can argue with confidence that Hawley’s merch sure as hell ain’t fair use.
On February 14, the U.S. Copyright Office confirmed its rejection of an application for a claim of copyright in a 2D artwork called “A Recent Entrance to Paradise.” The image, created by an AI designed by Dr. Stephen Thaler, was rejected by the Office on the longstanding doctrine which holds that in order for copyright to attach, a work must be the product of human authorship. Among the examples cited in the Copyright Office Compendium as ineligible for copyright protection is “a piece of driftwood shaped by the ocean,” a potentially instructive analog as the debate about copyright and AI gets louder in the near future.
What follows assumes that we are talking about autonomous AI machines producing creative works that no human envisions at the start of the process, other than perhaps the medium. So, the human programmers might know they are building a machine to produce music or visual works, but they do not engage in co-authorship with the AI to produce the expressive elements of the works themselves. Code and data go in, and something unpredictable comes out, much like nature forming the aesthetic piece of driftwood.
As a cultural question, I have argued many times that AI art is a contradiction in terms—not because an AI cannot produce something humans might enjoy, but because the purpose of art, at least in the human experience so far, would be obliterated in a world of machine-made works. It seems that what the AI would produce would be literally and metaphorically bloodless, and after some initial astonishment with the engineering, we may quickly become uninterested in most AI works that attempt to produce more than purely decorative accidents.
In this regard, I would argue that the question presented is not addressed by the “creative destruction” principle, which demands that we not stand in the way of machines doing things better than humans. “Better” is a meaningful concept if the job is microsurgery but meaningless in the creation or appreciation of art. Regardless, the copyrightability question does not need to delve too deeply into the nature or purpose of art because the human element in copyright is not just a paragraph about registration in the USCO Compendium but, in fact, runs throughout application of the law.
Doctrinal Oppositions to Copyright in AI Works
In the United States and elsewhere, copyright attaches automatically to the “mental conception” of a work the moment the conception is fixed in a tangible medium such that it can be perceived by an observer. So, even at this fundamental stage, separate from the Copyright Office approving an application, the AI is ineligible because it does not engage in “mental conception” by any reasonable definition of that term. We do not protect works made by animals, who possess consciousness that far exceeds anything that can be said to exist in the most sophisticated AI. (And if an AI attains true consciousness, we humans may have nothing to say about laws and policies on the other side of that event horizon.)
Next, the primary reason to register a claim of copyright with the USCO is to provide the author with the opportunity, if necessary, to file a claim of infringement in federal court. But to establish a basis for copying, a plaintiff must prove that the alleged infringer had access to the original work and that the secondary work is substantially or strikingly similar to the work allegedly copied. The inverse ratio rule applied by the courts holds that the more that access can be proven, the less similarity weighs in the consideration and vice-versa. But in all claims of copying, independent creation (i.e., the principle that two authors might independently create nearly identical works) nullifies any complaint. These are considerations not just about two works, but about human conduct.
If AIs do not interact with the world, listen to music, read books, etc. in the sense that humans do these things, then, presumably, all AI works are works of independent creation. If multiple AIs are fed the same corpus of works (whether in or out of copyright works) for the purpose of machine learning, and any two AIs produce two works that are substantially, or even strikingly, similar to one another, the assumption should still be independent creation. Not just independent, but literally mindless, unless again, the copyright question must first be answered by establishing AI consciousness.
In principle, AI Bob is not inspired by, or even aware of, the work of AI Betty. So, if AI Bob produces a work strikingly similar to a work made by AI Betty, any court would have to toss out BettyBot v. BobBot on a finding of independent creation. Alternatively, do we want human juries considering facts presented by human attorneys describing the alleged conduct of two machines?
If, on the other hand, an AI produces a work too similar to one of the in-copyright works fed into its database, this begs the question as to whether the AI designer has simply failed to achieve anything more than an elaborate Xerox machine. And hypothetical facts notwithstanding, it seems that there is little need to ask new copyright questions in such a circumstance.
The factual copying complication raises two issues. One is that if there cannot be a basis for litigation between two AI creators, then there is perhaps little or no reason to register the works with the Copyright Office. But more profoundly, in a world of mixed human and AI works, we could create a bizarre imbalance whereby a human could infringe the rights of a machine while the machine could potentially never infringe the rights of either humans or other machines. And this is because the arguments for copyright in AI works unavoidably dissociate copyright from the underlying meaning of authorship.
Authorship, Not Market Value, is the Foundation of Copyright
Proponents of copyright in AI works will argue that the creativity applied in programming (which is separately protected by copyright) is coextensive to the works produced by the AIs they have programmed. But this would be like saying that I have claim of co-authorship in a novel written by one of my children just because I taught them things when they were young. This does not negate the possibility of joint authorship between human and AI, but as stated above, the human must plausibly argue his own “mental conception” in the process as a foundation for his contribution.
Commercial interests vying for copyright in AI works will assert that the work-made-for-hire (WMFH) doctrine already implicates protection of machine-made works. When a human employee creates a protectable work in the course of his employment, the corporate entity, by operation of law, is automatically the author of that work. Thus, the argument will be made that if non-human entities called corporations may be legal authors of copyrightable works, then corporate entities may be the authors of works produced by the AIs they own. This analogizes copyrightable works to other salable property, like wines from a vineyard, but elides the fact that copyright attaches to certain products of labor, and not to others, because it is a fiction itself whose medium is the “personality of the author,” as Justice Holmes articulated in Bleistein.
The response to the WMFH argument should be that corporate-authored works are only protected because they are made by human employees who have agreed, under the terms of their employment, to provide authorship for the corporation. Authorship by the fictious entity does not exist without human authorship, and I maintain that it would be folly to remove the human creator entirely from the equation. We already struggle with corporate personhood in other areas of law, and we should ask ourselves why we believe that any social benefit would outweigh the risk of allowing copyright law to potentially exacerbate those tensions.
Alternatively, proponents of copyright for AI works may lobby for a sui generis revision to the Copyright Act with, perhaps, unique limitations for AI works. I will not speculate about the details of such a proposal, but it is hard to imagine one that would be worth the trouble, no matter how limited or narrow. If the purpose of copyright is to proscribe unlicensed copying (with certain limitations), we still run into the independent creation problem and the possible result that humans can infringe the rights of machines while machines cannot infringe the rights of humans. How does this produce a desirable outcome which does not expand the outsize role giant tech companies already play in society?
Moreover, copyright skeptics and critics, many with deep relationships with Big Tech, already advocate a rigidly utilitarian view of copyright law, which is then argued to propose new limits on exclusive rights and protections. The utilitarian view generally rejects the notion that copyright protects any natural rights of the author beyond the right to be “paid something” for the exploitation of her works, and this cynical, mercenary view of authors would likely gain traction if we were to establish a new framework for machine authorship.
Registration Workaround (i.e., lying)
In the meantime, as Stephen Carlisle predicts in his post on this matter, we may see a lot of lying by humans registering works that were autonomously created by their machines. This is plausible, but if the primary purpose of registration is to establish a foundation for defending copyrights in federal court, the prospect of a discovery process could militate against rampant falsification of copyright applications. Knowing misrepresentation on an application is grounds for invalidating the registration, subject to a fine of up to $2,500, and further implies perjury if asserted in court.
Of course, that’s only if the respondent can defend himself. A registration and threat of litigation can be enough to intimidate a party, especially if it is claimed by a big corporate tech company. So, instead of asking whether AI works should be protected, perhaps we should be asking exactly the opposite question: How do we protect human authorship against a technology experiment, which may have value in the world of data science, but which has nothing to do with the aim of copyright law?
About the IP Clause
And with that statement, I have just implicated a constitutional argument because the purpose of copyright law, as stated in Article I Clause 8, is to “promote science.” Moreover, the first three subjects of protection in 1790—maps, charts, and books—suggest a view at the founding period that copyright’s purpose, twinned with the foundation for patent law, was more pragmatic than artistic.
Of course, nobody could reasonably argue that the American framers imagined authors as anything other than human or that copyright law has not evolved to encompass a great deal of art which does not promote the endeavor we ordinarily call “science.” So, we may see AI copyright proponents take this semantic argument out for a spin, but I do not believe it should withstand scrutiny for very long.
Perhaps, the more compelling question presented by the IP clause, with respect to this conversation, is what it means to “promote progress.” Both our imaginations and our experiences reveal technological results that fail to promote progress for humans. And if progress for people is not the goal of all law and policy, then what is? Surely, against the present backdrop in which algorithms are seducing humans to engage in rampant, self-destructive behavior, it does seem like a mistake to call these machines artists.
The Illusion of More is my personal blog from December 2011 to December 2025. As of February 2026, I am no longer posting new blogs or other content, but I hope you enjoy this archive. Please do not attribute any of my writings here to my current or previous employers.
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