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

38 Pages Posted: 14 Feb 2023 Last revised: 31 Aug 2023

See all articles by Mark Fenwick

Mark Fenwick

Kyushu University - Graduate School of Law

Paul Jurcys

Prifina; Vilnius University - Faculty of Law

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 the age of generative AI.

Our main contention is that the Guetta form of creativity with generative AI tools differs in certain important respects from what has come before. The paper describes an iterative, dynamic process of conception, prompting, generation, refining, 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 mechanism that can manage these new cultural forms, and that 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 argues 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 new world of generative AI.

At the very least, earlier – and influential – models of creativity as human-driven involving creation ex nihilo become harder to sustain in a new age of generative AI. But this does not mean copyright or notions of originality are redundant or that copyright law cannot accommodate Guetta and other cases.

Such an account seems important as it challenges the hegemonic and reductive view that AI “generates” artistic works autonomously and avoids reducing the copyright issues raised by such creative works to the related but distinct question of whether learning models rely on copyrighted data. As such, copyright law should remain an important mechanism to facilitate genuine creators who are using AI systems in innovative and unique ways to push the boundaries of their creativity.

Keywords: copyright, creativity, originality, AI, generative AI, artificial intelligence, data, machine learning, Feist, originality, David Guetta, ChatGPT, input, output

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

Suggested Citation

Fenwick, Mark and Jurcys, Paul, 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

Paul Jurcys (Contact Author)

Prifina ( email )

1 Market Street
San Francisco, CA California 94105
United States

Vilnius University - Faculty of Law ( email )

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

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