Abstract This article revisits historical debates over the status of photography in the 19th century to shed light on current legal and philosophical challenges posed by artificial intelligence (AI) in the creative sphere. Just as early critics questioned whether photographs could be considered art or original expression, today’s disputes turn on whether AI-generated outputs qualify for copyright protection. These parallels illuminate a recurring tension in copyright law: how to distinguish technological mediation from human authorship. Focusing on legal developments in the USA, the article analyses key disputes, including A Recent Entrance to Paradise, Théâtre d’Opéra Spatial and Zarya of the Dawn, alongside recent guidance from the USA Copyright Office. These are examined alongside international developments, such as litigation surrounding Stable Diffusion in China. Collectively, these examples illustrate how doctrines of authorship and originality are being reinterpreted in light of generative AI. The article argues for a cautious, context-sensitive evolution of copyright frameworks, grounded in a reaffirmation of human agency rather than rigid tests of technological novelty. By drawing on the historical trajectory of photography’s legal recognition, it suggests that AI-assisted creativity may eventually be accommodated without sacrificing copyright’s core values. These insights are intended to support lawmakers, courts and creators as they respond to rapidly changing technologies while preserving the legitimacy and coherence of copyright.
Van Anh Le (Wed,) studied this question.
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