Author

Orlando Cardoza
Partner
Nicaragua
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As has been the case with past technological advances, AI will become a “a tool for efficiency” for writers and creators, streamlining certain aspects of the creative process, and enabling them to focus on the emotional elements of their craft that only human creativity can achieve. While resistance to such transformative innovations is natural -and AI is undeniably transformative- history demonstrates that adaptation, not rejection, ultimately prevails.  

This pattern is illustrated in a scene from the movie The Social Network about the birth of Facebook.  In said scene Mark Zuckerberg (Jessee Eisenberg) and Eduardo Saverin (Andrew Garfield), meet with Sean Parker (Justin Timberlake), who rambles in anecdotes about his involvement with NAPSTER, his litigation with the music industry, claiming he “brought down the record companies”. Eduardo abruptly interrupts him and says: “You didn’t bring down the record companies. They won”. Parker immediately retorts: “In court” and asks rhetorically: “You wanna buy a Tower Records Eduardo?”. The silence that follows highlights the undeniable impact of NAPSTER. While it lost its legal battles, it forever changed how music is consumed, paving the way for the streaming platforms of today.  

This same pattern is unfolding today with AI and its relationship with writers. Some view it as an existential threat to their craft, but history shows that technological advancements per se do not extinguish art forms—they reshape them, and the initial resistance is followed by transformation, with creativity and innovation emerging stronger in the aftermath.  

Technological Disruption in the Arts: A Historical Perspective 

The arts have faced disruptive technologies before. When photography emerged, its place within copyright law was contested, as seen in the classic case of Burrow-Giles Lithographic Co. v. Sarony (1884). When contemplating granting copyright protection to a photograph, the Court initially hesitated, noting that a photograph was “not a writing nor the production” of a human author, making its eligibility for protection “not free from difficulty”.  However, it ultimately recognized that the camera was a tool and the photograph the product of the photographer’s creative choices, declaring it “an original work of art, the product of plaintiff’s imagination”. Time has shown that photography didn’t replace other art forms, it merely introduced new ways to capture and interpret reality.  

Ninety-eight years later, in 1982, Jack Valenti, then President of the Motion Picture Association of America (MPAA) in a hearing before Congress declared that “the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone”. Yet, contrary to his dire prediction, video rentals “became a major profit center”1 for Hollywood.  

 These examples highlight the recurring pattern: technological advances initially face resistance but ultimately expand creative possibilities. While some players inevitably struggle or fail to survive, the larger creative ecosystem evolves.  And it’s essential to remember that “copyright does not exist for the benefit of creators”, or economic groups. Its purpose, as outlined in the Constitution is to promote progress and the useful arts2, not to preserve the status quo.  

 AI: Partner, Not Replacement 

The fear that AI will replace human writers mirrors these historical concerns. In 2023, the Hollywood writers’ strike brought many of these fears into focus.  As Jake Coyle of the Associated press observed: “during the nearly five-month walkout, no issue resonated more than the use of AI in script writing”.  Writers fear that AI could eventually render their skills obsolete.  However, this overlooks a fundamental truth: art thrives on the decisions artists make. As Ted Chiang explains: “art is something that results from making a lot of choices”.  

 A.I, by contrast, does not make artistic choices.  It calculates probabilities based on data or mimics stylistic patterns.  Its function is more akin to AutoCAD in architecture, which revolutionized design, enabling architects to design with greater precision and complexity, but it did not diminish their role.  On the contrary, it freed them to focus more on the artistic aspects of their craft while streamlining technical tasks.  Importantly, architectural works remain fully protected under copyright, highlighting how technology and creative integrity can coexist.  

 While resistance to recognizing AI as a partner in creation remains strong, there are signs that show we are moving in that direction.  One such example is the Zarya of Dawn comic book case.  Initially, the U.S Copyright Office granted copyright protection to this Work. However, upon learning that the applicant had used AI in generating the artwork, the Office partially cancelled the registration, stating the application was “incorrect, or at minimum, substantially incomplete”.  Yet, the Office did not categorically deny protection to the AI generated material. It granted protection to the “selection, coordination, and arrangement of text created by the author and artwork generated by artificial intelligence”3.   

This decision highlights an evolving legal stance, recognizing human creativity in the design of AI-generated content and marking a step toward the evolution of creativity.  Of course, more ground must be covered to define clear requirements for protecting works created with the aid of AI. Nonetheless, is an undeniable step towards “the development of copyright standards applicable to a broad range of generative AI platforms”4.  

 The case also highlights a dilemma: the Copyright Office maintained that it could not grant protection to the images because the creation process was not controlled by the author. Yet, spontaneous photographs, such as Evan Vucci’s image of Donald Trump after the assassination attempt, taken with minimal control over the creative process and no intentional artistic input, are protected by copyright.  This raises a critical question: if a photograph born of chance qualifies for copyright, why should works involving direct human input and intentional direction -albeit assisted by AI- be treated differently?   

AI’s role in creation resembles Jeff Koons artistic process. Koons, known for his inflatable rabbit sculpture that sold for $91 million -the highest price paid for a living artist’s work-conceptualizes elaborate artworks, but does not do any actual work himself.  Instead, he directs a team of artists to bring his vision to life. Similarly, AI acts as a tool, with creators providing ideas, instructions, directions, and oversight.  

Koon’s process exemplifies how the essence of creativity lies in vision and decision–making, even when the execution is carried out by others – whether human or not. Just as Napster forced the music industry to rethink its business models, AI will push the writing and entertainment industries to develop new legal frameworks that balance the rights of creators with the transformative opportunities offered by this technology.   

The story of AI in the creative process is still unfolding, but history offers a clear precedent: new technologies do not extinguish artistic expression – they enhance and reshape it. By embracing AI as an efficient tool, writers and creators can expand their horizons and explore new forms of storytelling, ensuring that human ingenuity remains at the heart of artistic innovation. As with every technological leap, adaptation will pave the way for a more dynamic and enriched creative landscape.   

References 

  • Cohen, J. et al. Copyright In A Global Information Economy. 5th ed. (2020). Aspen Publising 
  • Reed, C. The Unrealized Promise of the Next Copyright Act. U.S Copyright Policy for the 21st Century. (2019) Edward Elgar Publishing. 
  • Darcy, O. Caught in Copyright. The issue surrounding the Associated Press’ iconic photo highlights tension between the public’s desire to commemorate a historic moment and the legal rights of those who capture it. (August 29, 2024). Status. Retrieved from: https://www.status.news/p/trump-assassination-photo-copyright (last visited  December 6, 2024)