Abstract
This Article examines how copyright law defines creativity and authorship in an era of rapidly evolving artistic expression, with particular emphasis on generative artificial intelligence. Tracing the development of U.S. copyright law from its constitutional foundations through modern case law, the author explores the legal standards governing originality, fixation, human authorship, and the idea-expression dichotomy. The Article analyzes how these principles have been applied to both traditional and emerging forms of art, including conceptual, performance, appropriation, digital, and AI-generated works. It also examines recent guidance from the U.S. Copyright Office and evolving judicial decisions addressing the copyrightability of AI-assisted and AI-generated content. By comparing legal standards with philosophical understandings of art, the Article argues that copyright law is designed to determine what creative expression merits legal protection rather than to define what constitutes art itself. Ultimately, the Article contends that while existing copyright principles provide a workable framework for evaluating new technologies, continued legal and policy development will be necessary as artificial intelligence increasingly reshapes artistic creation.
Repository Citation
Scott J. Sholder,
Judging Art: Copyright, Creativity, and the Meaning of Art in the Eyes of the Law,
30
Marq. Intell. Prop. & Innovation L. Rev.
219
(2026).
Available at:
https://scholarship.law.marquette.edu/ipilr/vol30/iss2/4