By Julius Melnitzer | December 21, 2025
“The digital age simply provides a new context for traditional IP questions around authorship, originality, ownership, and the fair use of art” — Eloise Calder
In an increasingly digital world, technologies like generative AI have made efficiency key, amplifying the desire for instant gratification and shortening attention spans – a challenging environment for both the creation and consumption of art. With the invention of technological disruptors, art can be produced by a computer at the click of a button. This begs the question, what qualifies as “art” and how is this changing in the digital age?
“The concept of art and what qualifies as art is always evolving and being challenged,” says Eloise Calder, a member of the litigation and commercial team at AJ Park, part of the IPH network, in an email response to questions submitted by IPHQ News. “It wasn’t all that long ago that people were questioning whether sculptures made of industrial materials could qualify as art, or whether a photograph could be protected as a work of artistic expression.”
Understanding the parameters of what can legally constitute as art has always been essential for artists looking to protect and commercialise their work.
Disruptive, Rapidly Evolving Technologies
Nowadays, the conversation around what qualifies as “art” has been further disrupted and challenged by artists who engage the creative process by delegating to artificial intelligence (AI).
“AI continues to develop and be used at an unprecedented rate,” Calder says. “OpenAI had the largest and fastest uptake in users of any technology in history, and the law is clearly still trying to catch up.”
The extraordinary pace of adoption of genAI tools is rapidly challenging the traditional concepts of the creation, distribution, and ownership of art.
The fact remains, however, that IP law is vital to protecting creatives. And, despite the absence of a fixed definition of “art”, over time IP law has in practice always drawn boundaries around what can legally qualify as “art”.
“For example, by deciding what counts as ‘original’ or who the ‘author’ is, copyright law determines what legal protection exists for artwork and artists,” Calder says. While the tests for determining what constitutes art are well-defined, applying the tests to the complexities of the digital age remains a work in progress. For several years, courts across the globe have litigated whether AI ownership can be legally recognised in the IP system, with varying and evolving outcomes.
Who’s the “Author”? Who’s the “Owner”?
Some artists are now blurring the line between artistic and technical creativity. For example, Harold Cohen developed an algorithm that could paint independently, and Refik Anadol exhibits AI-generated immersive installations at New York’s Museum of Modern Art.
“As AI tools, algorithms and datasets make the creation of art more digital and collaborative, authorship can increasingly be shared between multiple human and technical contributors,” Calder says.
The upshot is that familiar IP questions—who is an author, who owns what rights, and who gets credit for collaborative or AI-assisted work—arise in new contexts, forcing the law to determine where creativity starts and ends.
“Emerging technologies challenge some core assumptions of IP law, including whether a work is ‘created’, by ‘a person’, and can be legally owned,” Calder says.
The key question that AI has introduced is what degree of human creative input is needed for copyright law to protect an artwork. So far, no jurisdiction appears to have a clear, sustainable framework for dealing with the intersection of the burgeoning AI industry and traditional IP concepts.
“What is consistent across jurisdictions is the key question: how much human involvement/authorship is necessary for copyright to apply?” Calder explains. “But with AI and autonomous systems, the law struggles to identify the ‘author’: is it the artist, the AI developer, or the machine itself?”
Some courts and regulators, Calder notes, are taking a conservative stance requiring that works have significant human input to qualify for copyright registration. Italian tax authorities have recently decided, for example, that sculptures created on a computer, printed with a 3D printer, and finalised by the artist were not art for tax purposes because they were not “made entirely by the artist”.
In the United States, the jurisprudence is mixed. Some American courts have denied copyright registration for works created with little human involvement. But a recent American ruling granting copyright for the AI-assisted artwork, A Single Piece of American Cheese, shows that copyright protection is achievable when the human author has meaningful creative input.
Some jurisdictions have been even more flexible.
“The United Kingdom and New Zealand already allow for some computer-generated work to be copyright protected, so there may be some flexibility when it comes to AI-assisted art,” Calder notes.
Overall, however, it appears that purely AI-created art will not qualify for copyright protection.
“The likelihood is that courts will continue to assess this on a case-by-case basis, making for a complicated and time-consuming process until a clearer framework emerges”, Calder concludes.
Meanwhile, Calder adds, blockchain and smart contracts add another layer of complexity.
“They can automatically handle transactions and enforce agreed conditions, like resale royalties or payments, but they still rely on IP law to define what rights exist and to resolve disputes,” Calder explains. “They don’t replace or remove the need for human made agreements.”
Ownership, like authorship, is also increasingly complicated. Digital artworks often involve multiple layers of rights including the rights to the final output, the tech’s code and algorithm, the data used, and the reproduction rights.
“AI tools make it easier to share, remix, and distribute creative work, but at the same time they also make determining ownership less intuitive,” Calder states. “It isn’t as simple as saying, ‘I made that’.”
What’s clear, Calder adds, is that the law will have to adapt.
Distributing Art
Modern technologies are changing the way art is distributed as well.
Not surprisingly, these innovative technologies, like tokenisation and art-based cryptocurrencies, are no less devoid of legal complexities than questions relating to authorship and ownership.
“While tokenisation introduced new ways to trade art online on a global and real-time basis, owning a token doesn’t necessarily mean owning the artwork,” Calder explains.
Unlike traditional distribution models, the newcomers don’t have well-defined regulations, protocols, or trade customs.
“This may leave certain gaps and the potential for exploitation by unscrupulous actors,” Calder says. “‘Meme coins in the cryptocurrency space are one example.”
This ease of distribution, which can be global and instant, makes copyright and licensing agreements more important than ever for artists who want to control the use of their work.
Consequently, business models that encourage new ways to monetise art are emerging. Artists can now work with platforms, enter tech collaborations, and experiment with subscription or licensing models.
But these are effective only when IP ownership, licensing rights, and revenue sharing are clearly defined.
“In a digital setting, the business model is only as strong as the IP framework behind it,” Calder says.
Tracking & Managing Art
The benefits of new technologies for tracking and managing art are myriad. Digital works, non-fungible tokens and blockchain can record authenticity, provenance, and legal title. In one recent instance, AI authentication tech helped uncover 40 counterfeit paintings available for online sale.
But there’s a caveat.
“Provenance and authenticity records in the digital world, as in the non-digital world, are only as reliable as the data entered because mistakes, misrepresentations, and gaps can create disputes over ownership, authenticity or rights,” Calder says. “The point is that technology alone can’t guarantee legal certainty, and sometimes you still need a human lawyer to figure out who really owns what.”
For her part, Calder believes the world is moving toward hybrid systems where traditional IP rights and digital tools work together to track and manage IP rights in the digital art world.
Do Art Lawyers Need to be Technology Lawyers?
“I don’t believe art lawyers have to be technology lawyers, but I do think they need a solid grasp of IP law, with a particular understanding of how technology is reshaping traditional notions of creativity, originality and ownership,” Calder opines.
Art in the digital age, she points out, is “just a new context for traditional IP questions” that are being tested in new ways.
“But the principles are the same, and the tests aren’t new.”