Originality and the Future of Copyright in an Age of Generative AI

22 Pages Posted: 14 Feb 2023 Last revised: 28 Feb 2023

See all articles by Mark Fenwick

Mark Fenwick

Kyushu University - Graduate School of Law

Paulius Jurcys

Vilnius University - Faculty of Law; Prifina

Date Written: February 11, 2023


This paper takes the occasion of French DJ David Guetta’s use of generative AI tools to create lyrics and a voice in the style of Eminem, which he then used in one of his concerts, as the basis for an exploration of the shifting meaning of creativity and originality in a digital age.

The paper seeks to identify more precisely what is distinctive in emerging models of AI-driven creativity and asks whether copyright can accommodate such new cultural forms and practices. Our main contention is that the Guetta form of creativity differs in certain important respects from what has come before.

More specifically, the paper outlines an iterative, dynamic process of conception, prompting, generation, filtering, and deployment to characterise creativity in this context. Nevertheless, we contend that copyright – specifically the concept of originality as articulated in US federal law – is a sufficiently durable legal form that can manage these differences, and the two basic requirements of modern copyright law (a tangible medium of expression and a modest degree of creativity) remain relevant in identifying the scope of legal protection.

The paper concludes with the thought that the David Guetta story reveals something more general about creativity in a digital age, namely that while hybrid-networked (i.e., human – corporate – machine) creators have always created hybrid-networked cultural forms (i.e., creations that blend human and technology-constituted elements), such hybridity becomes increasingly visible and complex in the context of a world of generative AI.

Earlier – and influential – models of creativity as human-driven and involving creation ex nihilo become harder to sustain in a new age of generative AI but that does not mean copyright or notions of originality are redundant or copyright is unable to accommodate the Guetta and other similar cases.

Keywords: AI, generative AI, copyright, creativity, originality, artificial intelligence, data, machine learning, ML, Feist, originality, David Guetta, ChatGPT, Dall-e 2

JEL Classification: K0, K1, K10, K19, K20, K21, K23, K29

Suggested Citation

Fenwick, Mark and Jurcys, Paulius, Originality and the Future of Copyright in an Age of Generative AI (February 11, 2023). Available at SSRN: https://ssrn.com/abstract=4354449

Mark Fenwick

Kyushu University - Graduate School of Law ( email )

744 Motooka, Nishi-ku,
Fukuoka, Fukuoka 819-0395

Paulius Jurcys (Contact Author)

Vilnius University - Faculty of Law ( email )

Saulėtekio ave. 9, building I
Vilnius, LT-10222

Prifina ( email )

1 Market Street
San Francisco, CA California 94105
United States

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