Intent, control and creative freedom in AI- Supported Output: Lessons from Photography

Abstract

The advancements achieved by generative AI have marked a significant step in creative art, raising copyright law questions, particularly around issues of authorship, originality and the role of AI in the creative process. Copyright law has grappled with similar challenges before, especially with the advent of emerging technologies, as evidenced during the early days of photography. Just as photography was initially viewed as the product of a machine rather than a human creation, so is output created with the support of generative AI often seen as predominantly AI driven. By drawing an analogy with the camera, this article explores how the users’ expression of free and creative choices, a fundamental aspect of originality under EU copyright law, can be identified at various stages in the production process of AI-supported output. It argues that the stage of ‘taking a photograph’ encompasses a series of human decisions rather than being an isolated act of pressing the shutter. Similarly, if the execution stage is seen as a process of converting users’ decisions into a preliminary output—much like ‘shooting a photograph’—those decisions can also serve as an additional element for attributing originality to AI-supported outputs. In analysing the emerging standards of authorial intent and control in assessing originality for AI-supported outputs, the article explores the distinction between semantic and categorial intentions, as well as the interplay between intent, control and the predictability of the outcome. It concludes that since categorial intent is always achieved and therefore infallible, the AI-supported output will consistently align with the author’s conception or fundamental approach to the work. Moreover, while authorial control and intent alone cannot establish originality, they can nonetheless contribute to assessing the originality of AI-supported output when they are evident in the creative process or its outcomes.