AI Artists on the Stand: Bias Against Artificial Intelligence-Generated Works in Copyright Law

Generative artificial intelligence (AI) is revolutionizing the creation of art, literature, and music—challenging the boundaries of intellectual property law. To date, scholars have primarily focused on AI’s authorship/entity status and the regulation of its use, overshadowing a critical issue: how AI’s involvement in creative processes influences legal judgments in copyright disputes. Our empirical research reveals systemic bias against AI-generated works in such legal matters. In our studies, participants read about a company that had hired either a human designer (condition one) or a generative AI art system (condition two) to produce works of art, and those works of art arguably infringed an existing copyright. Everything except for the identity of the hired creator (human vs. AI) was held constant, including the works of art: Participants saw identical works. The results showed that, when the works were produced by the AI (vs. the human), participants’ perception and behavior radically shifted. They were more likely to recommend that a copyright suit be commenced, more likely to find substantial similarity between the original and the allegedly infringing work, and more likely to rule in favor of infringement. Importantly, we do not argue that this bias against AI is bad or immoral or unjust. Rather, we merely identify the fact that, when a creator is an AI, people perceive the creation differently. There is a perceptual bias, and more importantly, this perceptual bias impacts legal outcomes. From this foundation, from this advance in basic science, a number of normative claims may emerge. For one, it is reasonable to assume that human actors, such as corporations, that make use of AI creators, face increased legal risk. As an extension, we delve into copyright law’s primary objective—to promote the creation of new works—and we show that biases against generative AI may frustrate this objective, impeding the very creativity copyright law aims to incentivize.