As the digital revolution unfolded in the 1990s and early 2000s, a charismatic hacktivist faction took hold in the copyright legal academy. In its purest form, the copyleft movement celebrated the notion that “information wants to be free” and opposed copyright protection in cyberspace. Some copyleft scholars served as lead counsel in efforts to overturn copyright legislation and immunize filesharing enterprises from copyright liability, blurring the line between interpretive scholarship and policy analysis. Many academic amicus briefs took on the tactics of zealous advocates, selectively and misleadingly presenting empirical, statutory, and doctrinal analysis. This Article chronicles the evolution of copyright law while tracing the devolution of copyright scholarship through this tumultuous era. It highlights the origins of the copyleft movement and ways in which many scholars lost sight of essential academic values—independence, objectivity, transparency, scrupulousness, methodological soundness, and analytical rigor—in an effort to persuade courts to remake copyright law through less than forthright and non-democratic means. In the process, they eroded the trust that courts had placed in the legal academy. As the Article shows, the courts have largely remained faithful to the rule of law in copyright cases and this has for the most part promoted cultural, social, and economic progress. A follow-on article examines the chasm between judicial interpretation of copyright law and the views of many in the copyright academy through an empirical examination of Supreme Court academic briefs, anthropological analysis of the copyright legal academy. It then assesses the ramifications of the devolution of copyright scholarship for the judiciary, democratic institutions, the scholarly community, and society at large.
Copyright protection requires creative choices—creative choices that manifest in the work for which protection is sought. We all understand this point in theory, but in practice it has proven difficult to apply to visual works. The contemporary treatment of photography and generative artificial intelligence (AI), two different technologies used to create images, illustrates this. Examples of courts holding photographs unprotected by copyright are few and far between; in contrast, the Copyright Office and federal courts have been reluctant to grant copyright protection to AI-generated elements of visual works. To sharpen the contrast with real-world examples: A photo of a sudden arrest, snapped without thought on a smartphone with default settings, has been found to be protected by copyright, while an AI-generated image refined over hundreds of prompts to illustrate a graphic novel has been denied protection. These seemingly incongruous outcomes may pose a challenge for copyright law as it seeks to regulate intellectual property rights across different media and technologies. We do not argue here that the Copyright Office has been too harsh on a controversial emerging technology. Rather, we suggest that contemporary treatment of photography has become lax, prone to granting copyright with little or no analysis. Often, courts assume any photograph is protected by copyright and defer examination of what elements in the photograph (if any) might be protectable until forced to do so in connection with the infringement or fair use analysis. Instead, we suggest, courts should fully examine the originality of a work at the copyrightability stage. Recent Copyright Office actions on generative AI can provide a useful roadmap for a more rigorous originality analysis of visual works—specifically, by emphasizing the importance of tracing purported creative choices to an expressive result that manifests in the final work. Existing doctrines designed for infringement analysis, such as “thin copyright” and “dissection,” also offer useful conceptual models. Just as not every element in an image will be deemed creative for purposes of determining infringement, not every human choice should necessarily be deemed creative for purposes of finding originality. By closely analyzing the connection between creative choice and resulting expression in photographs at the originality stage, courts can return coherence and rigor to copyright doctrine for visual works.
The influencer industry has exploded over the past few decades with estimated valuations as high as hundreds of billions of dollars. Most influencers are humans who receive compensation for leveraging their social media followings to promote specific brands. More recently, however, so-called virtual influencers, such as Lil Miquela, who are CGI creations rather than actual people, have achieved success in the young influencer industry. Now, so-called AI influencers enter this rapidly developing field with artificial intelligence technology playing an increasing, but complicated role in the creation and curation of influencer content. This Article catalogs the diverse roles held by artificial intelligence in the influencer space situating its various uses within a broader spectrum of influencer use of technology. This Article is the first to tackle a pair of important questions concerning whether the right of publicity applies to virtual and AI influencers, and whether it should apply. Descriptively, this Article examines state right of publicity regimes and analyzes whether these statutory or common law frameworks in their current form could apply to virtual or AI influencers. Normatively, the question of whether the right of publicity should apply to virtual or AI influencers is complicated by the fact that scholars and courts have not coalesced around a single theoretical justification for the right of publicity. By examining each of its possible theoretical justifications, the Article argues that there is a stronger case for applying the right of publicity to virtual and AI influencers under each justification than may immediately be apparent. Nonetheless, the strength and scope of the argument differ depending on the justification selected. Ideally this analysis will offer an opportunity for scholars, legislatures, and courts to sharpen their justifications for protecting the right of publicity into a theoretically defensible and coherent body, with broader implications not only for virtual and AI influencers, but the entire right of publicity doctrine.
In the last decade, courts have consistently upheld objections to public accommodation laws that would obligate unwilling vendors to provide services for same-sex weddings. At the heart of these disputes is the claim that, when they are required to provide wedding services to same-sex couples, vendors who oppose same-sex marriage are unconstitutionally forced to endorse them. These cases typically classify wedding content, such as photography and wedding cakes, as a form of artistic, personal, and ideological speech that endorses same-sex weddings. In this paper, I argue that wedding content not only isn’t a form of endorsement, but that it is altogether devoid of political, religious, and ethical values attributable to the service provider. Rather than personal and ideological speech, wedding content is a form of speech that I call detachablespeech—that is, speech which is intentionally designed for adoption by another party, and, conversely, isn’t meant to convey the creator’s personal ideology. From advertisements and marketing materials to sitcoms and commissioned film screenplays, contentgenerators who work in creative industries routinely and voluntarily create expression that doesn’t reflect their personal values. Indeed, in some cases, detachable content—e.g., a greeting card or a sign meant for the front lawn—is fungible and arguably doesn’t even become speech until it’s adopted by another party. Similarly, wedding content is not designed to convey the service provider’s values any more than a greeting card reflects the manufacturer’s personal point of view. Wedding content, rather than ideological speech,is a form of speech widget produced to specification. The recognition that wedding content is not an endorsement substantially weakens the First Amendment challenge to public accommodation laws in connection with same-sex weddings.
The rapid advancement of artificial intelligence ("Al") is transforming corporate innovation, enabling the automation of work traditionally performed by humans. Companies increasingly rely on internal data to develop and train Al systems, much of which originates from their own workforces. This includes work products created by employees or contractors in the course of their duties, here referred to as "workers' data." Workers' data may hold significant value as it is often of high quality, high quantity and of high relevance. Yet, ironically, if workers' data is used for automation purposes, it could displace the very employees who were responsible for generating the data in the first place. The risk of a "job apocalypse," where hundreds of millions of jobs could be replaced by Al in the coming years, becomes increasingly real as more companies push towards automating parts of their workforces. Work products used to generate workers' data will often qualify as copyright-protected works. The workers, who are authors in copyright law, will often have assigned their copyright to their respective employers or contractees, whether by statute or by contract. However, that companies may own the copyright for the work products, including the data, does not necessarily confer unlimited freedom of use. This Article critically examines the legal boundaries on the use of workers' data for Al and automation purposes, focusing on the European Union (EU), the United Kingdom (UK), and the United States. Overall, the current legal framework largely falls short of adequately protecting workers' rights when it comes to use of their data by employers, with one important exception. In the EU, the DSM Directive introduces a right for authors to claim additional remuneration where the economic value derived from their works is significantly greater than what they were originally paid. This right to contract adjustment, commonly referred to as the "best-seller" rule, may, in certain cases, help workers whose data are being used without fair remuneration, bridging what is coined as the "workers' data value gap." Whether workers are entitled to further remuneration will depend on highly fact-specific circumstances, and outcomes are likely to vary from case to case. The urgency of addressing these issues cannot be overstated. Workers' data is expected to play an increasingly central role in corporate automation projects worldwide, with consequences that extend far beyond the EU. Without a clear and coherent legal framework, there is a dual risk. On the one hand, companies may undervalue or fail to properly compensate for the human contributions that make automation possible; on the other hand, legal uncertainty or excessive compensation claims could deter or slow down automation initiatives. This Article calls for economic, policy, and legal research to explore these questions in greater detail, and to develop balanced solutions that both protect workers' rights and foster innovation in the coming age of corporate automation.
Have you always (or ever) yearned to produce your own recording of Elvis Presley singing great baritone arias from Italian opera? Or to make a movie starring Nicole Kidman as Lady Macbeth? Or a videogame featuring the bully who tormented you in high school suffering repeated tortures worthy of the Christian martyrdoms recounted with gusto in The Golden Legend? You can fulfill all these wishes, and more, thanks to the AI technology enabling the creation of “deepfakes”—known in legal documents as “digital replicas”—capable of simulating the visual and vocal appearance of real people, living or dead. AI programs can also generate musical compositions in the style of well- known composers or performers, as well as video sequences. What may be good fun in private may become pernicious, offensive, and even dangerous, if widely disseminated over social media or through commercial channels. But, at least in the U.S., legal protections for performers and ordinary individuals against digital replicas, are at best, scanty.
