Introduction
Museums are often associated with various art forms curated by numerous artists. Everyone knows about the Louvre Museum, where one can find the famous Mona Lisa painting by Leonardo da Vinci, a human artist. If Leonardo had been alive, he would be shocked to know that his famous art could be replicated or controversially made better or worse by Artificial Intelligence (“AI”).
As a layman, it isn’t easy to understand the position of AI as an artist. However, in recent times, the world has witnessed a surge in the talent of AI as an artist, which arguably has the potential to make some of the most amazing art forms. DALL.E is one such AI that creates art on its own. As the boundaries of art expand in response to technological advancement, this shift in perspective may mark a progressive evolution or raise new questions altogether about the authenticity of such art.
According to WIPO, Intellectual property (“IP”) refers to creations of the mind, such as inventions, literary and artistic works, designs, symbols, names and images used in commerce.[1] It is protected through three major laws- Copyright, Trademark and Patent across the world. The prevailing legal position has been that IP rights are granted exclusively to the human creators or to the individuals who qualify as the “authors” under the definitions provided under the various legislative frameworks.
Craig Boehman, a fine art photographer, said in one of his blogs, “As a photographer-turned-artist, I’m very much in favour of AI, and I use it to create pieces that are typically conceptual or express ideas that I don’t have the time or resources to photograph myself.”[2] He further elaborated on the fact that during the early 18th century, Henrietta Clopath was scared that photography could not be considered a form of art, citing,“The fear has sometimes been expressed that photography would in time entirely supersede the art of painting. Some people seem to think that when the process of taking photographs in colours has been perfected and made common enough, the painter will have nothing more to do.”
These statements draw a compelling parallel between past and present disruptions in artistic perspectives, highlighting how generations continue to have shifts in opinion as to what is a contemporary creative expression of art. Just as photography was once feared for undermining traditional painting, the AI-generated art today is scrutinised for its legitimacy and impact on human creativity. However, the past showcases that rather than replacing the existing forms, new technologies often expand the boundaries of artistic expression. Boehman’s embrace of AI as a tool for conceptual exploration reinforces the idea that technological innovation can coexist with and even enhance the traditional art form, rather than extinguishing it.
Law Relating To Intellectual Property
Across the world, various laws have been legislated to protect and regulate Intellectual Property rights. There are three major international treaties relevant to copyright law: the Berne Convention for the Protection of Literary and Artistic Works of 1886, the TRIPs Agreement of 1994 and the WIPO Copyright Treaty of 1996. In India, there are three major legislations to give effect to the Copyright Act 1957, the Patents Act 1970 and the Trade Marks Act 1999. For the purpose of understanding the Right of AI on its generated art in India, it is essential to refer to the Copyright Act, 1957.
Under the Copyright Act, 1957, Section 2(d) lays down the meaning of the term Author as-
“(i) in relation to a literary or dramatic work, the author of the work; (ii) in relation to a musical work, the composer; (iii) in relation to an artistic work other than a photograph, the artist; (iv) in relation to a photograph, the person taking the photograph; 2 [(v) in relation to a cinematograph film or sound recording, the producer; and (vi) in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created;].”
According to this definition, the person who initiates or causes the work to be created on the computer is considered the author. However, there is uncertainty regarding what qualities a person should have to be recognised as an author. Neither national nor international copyright laws provide a definite definition of authorship. Thelaws are partly silent regarding whether non-humans can qualify for authorship and leave the issue openfor judicial interpretations.
However, Human authorship may not be an a priori of the copyright law. The Act itself does not define ‘person’, but referring to the General Clauses Act, 1897, under Section 3(42), a ‘person’ is inclusive of any company or association or body of individuals, whether incorporated or not; therefore, the person may be a human as well. This opens an interpretative space for the legal recognition of non-human actors, including AI, to be capable of being interpreted as a person under this definition.
In a famous Indian case, Amarnath Sehgal v. Union of India, 2005 (30) PTC 253 (Del), the court recognised the moral rights of an author under Section 57 of the Copyright Act, 1957 and observed that the author has the right to preserve, protect and nurture the creations through his moral right. The present framework of copyright law appears to revolve around the ‘creative human author.’ However, the present Act has to go through changes primarily in its definition to include AI as an author, and then Section 17, which designates the author as the first owner of the work.Since AI is not considered a person under the law, they do not have the right to enter into contracts, which is an essential requirement for copyright ownership.[3]
Problems Of Granting Copyright To Ai And It’s Potential Solutions
Can the entire artistic credit be given to AI?
Legally, as of now, AI systems, including image generators, AI music generators and chatbots like ChatGPT, cannot be considered the author of the material they produce. Their outputs can’t be considered the authors of the material they produce.Their outputs are simply a culmination of human-made work, much of which has been scraped from the internet and is copyright-protected in one way or another. AI works on the database, which is available to it on the internet. When AI creates any sort of creative content, it is all due to the content it gathers from online, processes it and then draws an opinion of itself. While the content used by the AI for learning may originate from existing works created by others, it is important to distinguish between direct replication and creative inspiration. Unlike simply verbatim copying, AI systems analyse vast amounts of data, identify and interpret the information, and then generate original outputs based on that processing. Thus, their creations are not mere reproductions, but rather new expressions formed through algorithmic interpretation, further giving rise to the ‘defence of pastiche’.
Therefore, when determining whether AI should be credited or granted IP rights, two key factors must be considered. Firstly, the extent of human involvement. If a human has been actively collaborating with the AI during the creative process, IP rights may justifiably be attributed to both the humans and the AI; conversely, if the human input is absent, then the sole acknowledgement should go to the AI. Secondly, the sources referred by the AI during the creation must be examined, i.e. to look if the AI has drawn upon specific works as inspiration, those sources should be given credit, much like citations in a research paper, where the author holds the copyright of his work but gives due credit to the work cited by it.
Under whose name would the Art be copyrighted in the case of AI?
The easiest approach for this can be for the legislatures of different countries to draft an explicit law that allows non-human authorship, which would include AI. However, one of the biggest hurdles while drafting the provision would be where to draw the line of differentiation between the rights of AI and Human beings. For example, if art is created by an AI and another art by a human, it might be possible that there can be certain similarities between both the arts. In such cases, a problem would arise as to who should be given the right, human intelligence or artificial intelligence? The potential solution to this problem may be the doctrine of the First-to-create or First-to-publish rule. If a human artwork was created or published first, then he should have the copyright ownership over that work rather than AI, and vice versa.
The second problem is regarding granting legal rights to AI. With the existing legislation, AI is not recognised as a legal entity in any jurisdiction globally. This absence of legal status makes it challenging to attribute rights and liabilities to AI. However, AI have the capability to be granted legal status akin to the status of corporations. Another notable example is the robot Sophia, developed by Hanson Robotics, which was granted citizenship by Saudi Arabia in 2017 and demonstrated a willingness to acknowledge AI entities in legal and societal frameworks. Until such a legal framework is construed for AI, one possible interpretative route is to treat the AI’s operator as the “person who causes the work to be created”, thereby interpreting the definition to include AI-assisted creativity.
In legal cases, who will represent the AI?
The prevailing status of AI makes it clear that AI cannot sue or be sued, own property, claim rights or liabilities, or represent itself in legal proceedings. Therefore, in the case of AI-generated art, the representation falls upon the human or the legal entity operating or controlling the AI system. In a recent case, ANI v. OpenAI Inc.W.P. (C) No. 14254/2024 (Delhi High Court, filed on Nov. 17, 2024), the Delhi High Court admitted a suit against OpenAI for alleged copyright infringement by ChatGPT. Although the case revolved around the AI, the defendant named in the suit was the organisation/creator of the AI, not the AI itself. Another similar example is the case of Getty Images and others v. Stability AI, (2025) EWHC 38 (Ch), whereby the plaintiff sued the defendant for unauthorised use of copyrighted images to train its AI image generator. Here, the representative for the defendant was the organisation and not the AI. This can be understood by drawing a parallel with corporations in legal proceedings, where the entity itself is not physically represented but acts through its natural persons, who are authorised to act on its behalf. Therefore, in future, when AI is granted the status of a legal person and can be sued, then it can be represented by an authorised person.
Conclusion
As AI continues to evolve from a passive to an active, creative artist, it challenges the traditional provisions of IP laws. While current legal frameworks in India and globally still tether authorship and ownership to the legal or natural persons, the increasing autonomy of AI systems in generating original words compels a rethinking of those boundaries. However, in the evolving landscape of the 21st century, it has become essential to broaden the definition of legal persons. Rather than viewing AI as a threat to human creativity, it should be embraced with open arms, into the boundaries of artistic expression. Recognising AI-generated works in the existing laws will not only safeguard them but also prevent the misappropriation of AI outputs by humans. While the idea may currently appear speculative or futuristic, the pace of technological advancement makes it a pressing concern. The law must evolve over the period to include the various technological advancements within its framework, ensuring that IP laws recognise the AI systems as well.
[1]What is Intellectual Property (IP)? (n.d.). About-ip. https://www.wipo.int/en/web/about-ip
[2]Boehman, C. (2025, September 3). In defense of AI art — Craig Boehman. Craig Boehman.https://craigboehman.com/blog/in-defense-of-ai-art
[3]George, N. N. (1957). Adapting indian copyright law to the age of artificial intelligence: recognizing ai as authors under the copyright act of 1957. Indian Journal of Integrated Research in Law, IV(III), 810–812. https://ijirl.com/wp-content/uploads/2024/06/ADAPTING-INDIAN-COPYRIGHT-LAW-TO-THE-AGE-OF-ARTIFICIAL-INTELLIGENCE-RECOGNIZING-AI-AS-AUTHORS-UNDER-THE-COPYRIGHT-ACT-OF-1957.pdf
Author Name- Manshaa Dhar, pursuing a BA.LLB from the Army Institute of Law, Mohali. I am currently in my 5th year. My major interests lie in IPR laws, Corporate governance, technology and TMT.
