Abstract

This Article addresses the copyright regime of artistic works generated by artificial intelligence. I argue that the law of authorship as developed by courts, together with the Intellectual Property Clause in the U.S. Constitution, entails that, if anyone is entitled to copyright ownership of these works, it is the AI itself. Arguments advanced in the literature that programmers, developers, or similarly situated humans should own the copyright instead are rejected. However, I argue further that countervailing policy considerations suggest that AI-generated works should remain in the public domain for the time being. In particular, the fundamental differences between AI-generated artworks and traditional artworks justify thinking of the former not as art, but rather as what I call ‘pseudo art.’ Considerations concerning the nature of pseudo art support the position of the U.S. Copyright Office, who has so far denied copyright protection to AI-generated material.