Authored By: Simran Kaur
Goldsmiths University of London
This legal article will discuss artificial intelligence within the creative industry and its impacts, both socially and legally. Firstly, it is vital to understand what artificial intelligence is and how this branch of computer science has made its way into our daily usage. The importance of utilising advanced computer programmes and their effects have been studied and reported widely, due to the concerns surrounding the impact on human innovation and job displacement. The integration of sophisticated AI within society has made a notable impact in the creative industry. While there has been an undeniable transformation of different sectors, each with its own controversies surrounding AI, yet the levels of dispute over AI creative content is significant. It infringes many English copyright laws and challenges the author’s moral rights, which prompts the question of how AI can be used artistically without manipulating existing works. As we discuss the legal outlooks surrounding non-human work, we will find that the law requires amendment, to reflect the changing nature of advancing technologies. Lastly, this article will explain the rights of authorship, who may be granted rights over artistic works and whether these protections can be applied to AI generated works. The possibility of AI generated content receiving the same legal protection and remunerations, has ethical implications for human artists.
What is AI?
Artificial Intelligence is a branch within in computer science. It analyses and studies methods to allow machines to recognise their environment and use learning techniques to maximise their chance of achieving defined goals. [1] To measure AI usage and its impact on the content creation industry, we need to define it. It is difficult to categories it under one term as it is acknowledged that there are various forms.[2] As per Andreas Kaplan’s description, “there are about as many different definitions of AI as there are ways to describe Snow White’s beauty, depending on whether one focuses on her white skin, red lips, or black hair.”[3]
However, in many instances, AI applications are not perceived as artificial intelligence software. In many cases, the “cutting edge AI (software) has filtered into general applications,”[4] for instance, digital assistance like Alexa, facial recognition on mobile phones and customer support chats. These are to name a few, and on a daily basis, these applications are often not advertised or called
AI as “once something becomes useful enough and common enough it’s not labelled AI anymore.”[5]
We have defined what artificial intelligence is and how it filters through our daily lives. Yet, its appearance has become far more common than it was forty years ago. At most, early AI programmes could “prove theorems, solve geometry problems and play chess.”[6] Currently, AI can produce award-winning artworks[7], manage schedules, identify disease from blood tests and compose songs. The increase of everyday usage of AI is similar with the advancements of other technologies; “to make a specific process easier, more accurate, faster or cheaper.”[8] It is evident that this has led to some complexities between AI and humans. The employment of artificial intelligence has crept into many aspects of human life, from factory operations to healthcare. It is necessary in certain areas of work, which are repetitive and time consuming. Yet, in terms of other industries, a more human element is required. AI’s involvement may be deemed as a threat, slowly suppressing human ingenuity and innovation, particularly in the artistic fields. One of the most notable areas is creativity; this intrusion is not limited to painting and artistic mediums such as literature and music. The introduction of AI technologies sees the elimination of creative jobs and erodes human creativity and ability to conjure things with our minds. Some predict that AI will replace artists in the near future, it is evident that there is an over reliance on AI technology in many areas for instance, Artbreeder and Japer AI. [9]
AI is no longer a support machine, its usage has expanded beyond “high-performance computing and increased data storage capacities.”[10] In the content creating industry, the inception of AI companies like Midjourney and DALLE.E 2 has significant implications. It ‘feeds’ or supplements the fast-paced culture of today’s society. Churning out large amounts of text, image or audio at an astonishing speed.[11] Yet, people have pointed out that there is a key human element to AI creative works which is to prompt and programme interactions.
Impacts of AI on the Creative Industry
The adoption of AI has proved to be effective in many industries. In its present form, artificial intelligence provides sophisticated support, completing administrative tasks and jobs that require manual processing with efficiency. This has led to an improvement in productivity and accuracy in sectors such as customer service, manufacturing and finance. For example, in the financial industry, AI can be used to detect fraud and manage risk assessments. Thus, one may argue its purpose is to “perform tasks or create things that were previously impossible.”[12]
Yet, where does AI fit within the creative industry? This has prompted considerable debate between practitioners. In many instances, “creatives have a lifetime of experiences to build on, enabling them to think ‘outside of the box’ and ask ‘What if’ questions that cannot readily be addressed by constrained learning systems.”[13] These experiences enable human artists to portray personal stories through their work, ranging from cultural nuances to dramatic emotions; which cannot be replicated by AI. This notion is underpinned by European legislation, where creative works are viewed as the “author’s own intellectual creation “which “reflects author’s personality” through “free and creative choices.”[14]
AI software appropriates and manipulates existing works by human creators. While its works may seem new and complex, it is incredibly well-versed in accessing data and manipulating existing works to create products that superficially excite and stimulate the mind. This process is embedded in its algorithm, analysing vast amounts of information, patterns and reassemble them. For instance, AI can generate music by assessing and learning from a variety of existing musical works[15] and recombining the most appealing or popular elements in different ways.
Simultaneously, it can lean and mimic the visual art; emulating the technique of well-known artists. This prompts questions over copyright issues and whether copyright laws can be enforced to protect human creators. Under English law, the Copyright, Design and Patent Act 1988 provides exclusive rights which protect artistic works. This allows artists to work, sell and license their works. It is evident that creative AI utilises existing works without credit given to the artists and creator, failing to compensate.
Yet one may argue that the work produced by AI, is altered. It mimics the existing piece but changes some aspects of it, creating entirely different content. Thus, one may ask can people who use AI to create artistic work claim copyright protection? We can use the rationale in the Interlego v Tyco (1989)[16] case to discuss this. Here the Interlego company sued Tyco for copyright infringement. The main issue revolved around the Lego bricks, as products of design drawings, were eligible for copyright protection or only for design protection. Tyco had utilised Lego’s previous design plans but made alterations in 1972. These changes constituted original artistic works, therefore qualifying them for copyright.[17] However, the court argued that the drawings plans for the bricks did not have necessary originality to be eligible for copyright protection.[18] As per Lord Oliver, for work which has been copied to claim new copyright, “there must in addition be some element of material alteration or embellishment which suffices to make the totality of the work an original work.”[19]
According to Professor Antrasirichai, there is no use for AI in content creation due to the lack of human experience and ability to portray emotion. Although AI proves to be useful with certain tasks within content creation such as generating ideas and editing, it is insufficient in capturing the pliability of human nature. Furthermore, one may argue that the very act of creating is innately human, a process which involves intuition, spontaneity, and personal expression that cannot be completely mimicked by machines. While, these are the limitations posed by AI, some believe that Artificial Intelligence may still play a supportive role in the creative industry, providing aid to artists and writers to push the boundaries of their work in new and innovative ways. This is reinforced by a recent survey by Adobe[20] it highlighted” that three-quarters of artists in the US, UK, Germany and Japan would consider using AI tools as assistants, in areas such as image search, editing, and other ‘non-creative’ tasks.”[21]
The question of authorship
Authorship is a topic which frequently sparks a complex discussion. To engage in this, we must firstly, define what authorship means in the creative industry. Under the Copyrights, Design and patents Act 1988, the author is the individual who created the work.[22] Here, the legislation outlines that authors have moral and economic rights towards their work. This clearly doesn’t apply to artificial intelligence software. However, some argue that AI works should be protected regardless if they were created with human intervention. The development of new literature and arts will benefit and enrich society as well as encourage further development of creative AI.
One may argue that under Copyright Designs and Patents Act 1988 s178, copyright protection can be given to work generated by a computer in situations where there is no human author.23 As highlighted above, AI has shifted and developed into a sophisticated software which is capable of anaylsing and creating its own content. It is no longer an automated assistant and some may argue should be given recognition for its content.
However, the law cannot vest in machines nor inanimate objects. The legislation provides some copyright protection to computer generated work, namely to the human who made all necessary arrangement for the software to act.24 The rights consist of copyright protection for 50 years instead of the usual 70 years25 and no moral rights over the content. It is evident that there is a lack of clarity within the law regarding authorship for computer software. This is due to the fact that intellectual property law has developed over hundreds of years with human authors in mind, rather than animals or machinery. Much like the UK, many jurisdictions also consider AI works as viewed as computer software or computer programme. In various global states, authorship is limited to humans as per Art 15 ICESCR.26
To conclude, the subsequent rise of AI in content creation over recent years has caused profound implications on the creative industry. Whether it is music and art or literature, AI’s role is expanding rapidly, outlining both legal advantages and drawbacks for content creators. The question of authorship is especially significant, as legal frameworks struggle to establish who has artistic rights as the true author of AI-generated works and how these creations should be owned or protected, particularly within the English jurisdiction where AI-generated works are not legally recognized. The ethical considerations are often overlooked in legal discussions. It is important to consider the fairness and impact of AI on human artists and the creative industries. While AI offers innovative possibilities, it is vital to balance these advancements with the rights and interests of human creators. It is an assistive tool to aid human creators, therefore to remove it entirely would be unreasonable. To compromise the use of creative AI with protecting human content creators, current intellectual property laws must be reformed. A new category of AI laws must be enforced, to provide legal framework for AI generated works and to clearly outline transparency in its usage.
- Copyright, Designs and Patents Act 1988, Section 178
- Copyright, Designs and Patents Act 1988 s3
- ‘Copyright Notice: Duration of copyright (term)’ (Gov.UK, 15 January 2021)
<https://www.gov.uk/government/publications/copyright-notice-duration-of-copyright-term/copyrightnotice-duration-of-copyright-
term#:~:text=Literary%20works%20are%20protected%20when,the%20death%20of%20the%20author.> accessed 6 January 2025
- Art 15 International Covenant on Economic, Social and Cultural Rights
It is necessary to ensure that consumers and audiences are made aware of the involvement of artificial intelligence and human ingenuity. Similarly, it is key to spread awareness and educate policymakers and users as well as creators about operating the rapidly evolving terrain of artificial intelligence. Ultimately, exploring the various dimensions of AI’s influence on the creative industry—legal, ethical, and practical—provides a comprehensive understanding of its potentials and limitations, paving the way for informed discussions and future developments.
[1] Stuart J Russell and Peter Norvig, Artificial Intelligence: A Modern Approach (4th edn, Hoboken: Pearson 2021)
[2] Andreas Kaplan and Michael Haenlein, ‘ “Siri, Siri, in my hand: Who’s the fairest in the land? On the interpretations, illustrations, and implications of artificial intelligence”‘ [2019] 62(1) Business Horizons https://doi.org/10.1016/j.bushor.2018.08.004 accessed 6 January 2025
[3] ibid
[4] ibid
[5] Andreas Kaplan and Michael Haenlein, ‘ “Siri, Siri, in my hand: Who’s the fairest in the land? On the interpretations, illustrations, and implications of artificial intelligence”‘ [2019] 62(1) Business Horizons https://doi.org/10.1016/j.bushor.2018.08.004 accessed 6 January 2025
[6] Pamela Mccorduck, Machines who think : a personal inquiry into the history and prospects of artificial intelligence (25 edn, AK Peters, Natick, Mass 2004)
[7] Kevin Roose, ‘An AI-Generated Picture Won an Art Prize Artists Aren’t Happy’ (The New York Times, 2022) <https://www.nytimes.com/2022/09/02/technology/ai-artificial-intelligence-artists.html> accessed 6 January 2025
[8] N Anantrasirichai and D Bull, ‘Artificial intelligence in the creative industries: a review Artif Intell Rev 55, ‘
[2022] 55(1) Artif Intell Rev https://doi.org/10.1007/s10462–021–10039–7 accessed 6 January 2025
[9] Eram Shaikh, ‘Top 12 AI Text Generators For 2025 (Free & Paid) ‘ (Demandsage, 2024)<https://www.demandsage.com/ai-text-generators/> accessed 6 January 2025
[10] N Anantrasirichai and D Bull, ‘Artificial intelligence in the creative industries: a review Artif Intell Rev 55, ‘[2022] 55(1) Artif Intell Rev https://doi.org/10.1007/s10462–021–10039–7 accessed 6 January 2025
[11] Adam Hencz, ‘AI-Generated Art Controversy: The Future of Creativity or a Replacement for Human Talent?’ (ARTLAND MAGAZINE , 2023) <https://www.demandsage.com/ai-https://magazine.artland.com/ai-artcreativity-controversy/#:~:text=After%20AI%20companies%20introduced%20some,the%20erosion%20of%20human%20creativity-generators/> accessed 6 January 2025
[12] N Anantrasirichai and D Bull, ‘Artificial intelligence in the creative industries: a review Artif Intell Rev 55, ‘[2022] 55(1) Artif Intell Rev https://doi.org/10.1007/s10462–021–10039–7 accessed 6 January 2025
[13] ibid
[14] Infopaq International A/S v Danske Dagblades Forening (2009)
[15] Arthur I Miller, The Artist in the Machine The World of AI-Powered Creativity (MIT Press 2020) 133
[16] Interlego AG v Tyco Industries Inc [1989] AC 217
[17] ibid
[18] ibid
[19] ibid
[20] Pfeiffer Report, Creativity and technology in the age of AI (Adobe| 2018) page 6
[21] ibid
[22] Copyright, Designs and Patents Act 1988, Section 9
