Keywords
copyright, AI, generative AI, content creation
Abstract
Generative artificial intelligence (gAI) is generating vast vol- umes of content, including visual art with minimal human effort that competes directly with visual artists and threatens to dilute human culture in the process. In response, courts and copyright offices are quietly reintroducing two doctrines long considered incompatible with modern copyright: sweat of the brow, which rewards labor over originality, and aesthetic discrimination, which risks conditioning protection on perceived merit.
This article is the first to demonstrate how legal authorities are reintroducing these discredited doctrines under the guise of regulating AI-assisted outputs, thereby eroding the set of copyright doctrines accepted by most jurisdictions, which this author calls copy- right doctrinal acquis. This article bridges the philosophical foundations of copyright law, Lockean labor theory, Kantian autonomy, and Hegelian personality theory with questions raised by gAI and brain-computer interface convergence. It synthesizes case law from the U.S., China, and Europe to demonstrate a converging yet inco- herent response to AI-generated products that threatens to resurrect rejected doctrines under new terminology.
This Article reframes the copyright eligibility threshold in the age of gAI not around input quantity or output quality, but around demonstrable freedom of choice and human expressive originality.
It proposes four concrete, unprecedented policy reforms to re- calibrate copyright law in light of gAI: (1) a freedom of choice requirement, (2) evidentiary support, (3) streamlined formalities, and (4) tiered registration fees.
Recommended Citation
Danny Friedmann,
Sweat and Subjectivity Copyright Impulses,
36 Fordham Intell. Prop. Media & Ent. L.J. 170
(2025).
Available at: https://ir.lawnet.fordham.edu/iplj/vol36/iss1/3