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Cardozo Arts & Entertainment Law Journal

Abstract

It has become almost commonplace to observe that artificial intelligence is straining the boundaries of intellectual property law. Artists and other creators are especially uneasy about the extent to which generative AI systems may displace original works or, when they function as creative aids, provide little in the way of meaningful IP protection. Beneath these concerns, however, lies a more fundamental doctrinal tension: despite its frequently invoked justifications, IP law has never been primarily concerned with rewarding creativity or effort. Courts have longfavored formalistic approaches and minimal thresholds for originality, deliberately avoiding judgments about artistic or aesthetic merit. Similarly, they have resisted requiring substantial labor, in part because effort is difficult to measure or prove. In the context ofgenerative Al, these permissive standards allow machine-generated outputs-however thin their connection to human creativity-to fit comfortably within existing legal frameworks, even as they conflict with widely held intuitions about what IP law ought to protect.

This divergence has two significant consequences. First, itfuels disillusionment with an IP regime that appears to fall short of its perceived promise to recognize genuine creative contribution. Second, it leaves IP law poorly equipped to respond to an unprecedented volume of machineproduced works that satisfy doctrinal requirements while lacking the human-centered innovation many assume lies at the heart of IP. By examining the distance between IP's mythic rationales and its doctrinal realities, this Article argues that a reassessment-and possible realignmentof IP's foundational commitments is increasingly necessary in the age of generative AI.

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Law

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