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More recent­ly, artists have start­ed to use arti­fi­cial intel­li­gence (“AI”) pro­grams to cre­ate their art, which has exac­er­bat­ed these exist­ing con­cerns about author­ship and orig­i­nal­i­ty. This rais­es the ques­tion of whether these art pieces are authored by a human, and whether there is suf­fi­cient cre­ativ­i­ty present to sat­is­fy the orig­i­nal­i­ty require­ment.

11 When artists uti­lize tech­nol­o­gy to assist them in cre­at­ing their art pieces, they arguably delete them­selves from a part of the cre­ative process. Copy­right Office Prac­tices (“ Com­pendi­um”), “to qual­i­fy as a work of ‘author­ship’ a work must be cre­at­ed by a human being.” 10Works of art that are cre­at­ed by a tech­no­log­i­cal mech­a­nism that uses ran­dom mechan­i­cal process­es and requires no human inter­ven­tion fail to sat­is­fy the Copy­right Act’s require­ments, there­by falling into the pub­lic domain. The uti­liza­tion of tech­nol­o­gy specif­i­cal­ly with­in the art space pos­es chal­lenges for courts faced with deter­min­ing whether a work of art can be con­sid­ered an “orig­i­nal work of author­ship.” 8 To sat­is­fy the orig­i­nal­i­ty require­ment, an author must inde­pen­dent­ly cre­ate the work and pro­vide a “mod­icum of cre­ativ­i­ty.” 9 More­over, accord­ing to the Com­pendi­um of U.S. 6 The issue of author­ship becomes increas­ing­ly sig­nif­i­cant as tech­nol­o­gy advances and replaces the human author in some capac­i­ty, there­by forc­ing courts to rein­ter­pret the mean­ing of “author­ship” with­in the Copy­right Act. 5 The require­ment of “author­ship,” although not explic­it­ly artic­u­lat­ed by courts as a con­sti­tu­tion­al require­ment dis­tinct from orig­i­nal­i­ty, is an imper­a­tive com­po­nent of the analy­sis that courts have grap­pled with in unique cir­cum­stances. 4 The main pur­pose of this state­ment is to set out the orig­i­nal­i­ty require­ment con­sti­tu­tion­al­ly nec­es­sary to estab­lish copy­right pro­tec­tion. 3 Accord­ing­ly, the Copy­right Act stip­u­lates that a work must be con­sid­ered an “orig­i­nal work of author­ship” pur­suant to 17 U.S.C. 2 While the Copy­right Act aims to fur­ther these goals by grant­i­ng pro­tec­tion for var­i­ous works, Con­gress also intend­ed to cre­ate some lim­i­ta­tions as to the types of works afford­ed pro­tec­tion. The pur­pose of the intel­lec­tu­al prop­er­ty regime, as set out by the Intel­lec­tu­al Prop­er­ty Clause, is to incen­tivize artists and inven­tors to cre­ate and pro­duce works that will ben­e­fit soci­ety.