Judging creativity in AI-generated art: Chinese and Western perspectives on originality in copyright law

Abstract The desire to translate mental images into tangible forms has been intrinsic to human civilisation since its inception and has evolved through various mediums. The advent of artificial intelligence (AI) image generators has complicated the relationship between creative ideas and their expression, introducing a third-party intermediary labelled “AI” that blurs traditional distinctions between creator and tool. Legal decisions on whether AI-generated outputs merit copyright protection have rekindled discussions on originality, with courts grappling over the threshold of creativity required for protection. Initial rulings have taken divergent paths; some disconnect human creativity from AI output, while others acknowledge AI’s potential for novel creative expression, as exemplified by the Li v Liu decision in the Beijing Internet Court. This article contextualises and analyses this decision, sparking broader debates on the interplay between human creativity and AI, the arguments of incentive and justice, and the necessity of re-evaluating copyright frameworks to accommodate AI’s role. It proposes a nuanced understanding of collaboration that recognises AI’s contributions, allowing for distinctions between levels of human creativity and forms of artistic expression.