The Application of the Derivative Work Right to Literary and Artistic Productions of Ai Machines 2026 Update

When first drafted, this Article predicted that litigants would ask courts to broaden the derivative work right either to prevent the use of, or to claim protection for, literary and artistic productions made by Artificial Intelligence (AI) systems. The prediction has come true: plaintiffs have pleaded that generative models and their outputs are infringing derivative works, and courts have begun to cabin the right in ways this Article prescribes. The Article considers the normative valence of, and the (significant) doctrinal pitfalls associated with, such attempts. It also considers a possible legislative alternative, namely attempts to introduce a new sui generis right in AI productions. Finally, the Article explains how, whether such attempts succeed or not, the debate on rights (if any) in productions made by AI machines is distinct from the debate on text and data mining exceptions.