Angela Zhao & Sonia K. Katyal
Volume 77, Issue 5, 1097-1152
Years ago, Lawrence Lessig warned society of the dangers of a “permission culture” and a “pay per use” society that requires licenses in order to create. With the rise of licensing and contractual restrictions in the digital creative marketplace, we are seeing the risk of these predictions coming to pass. As we argue, the unsettled law surrounding digital art is an important heuristic for examining its broader future. While many scholars rightfully question the authorship of AI-generated digital art within the governing realm of copyright law, we argue that irrespective of those questions, one overlooked aspect of digital art lies in contractual restrictions that can be built into its design, carrying the potential to control downstream forms of creativity.
In this Article, we argue that this form of private ordering risks producing a world where digital creativity is conformed—and thus transformed—not by intellectual property principles, but by contractual control. The rise of digital art—particularly in the context of NFTs and generative AI—forces us to contemplate how conventional legal paradigms—specifically contract and intellectual property—carry both limits and possibilities within this emerging world of private ordering. In particular, copyright and contract law will be increasingly asked to respond to these shifts. The law can either expand, loosening its grip and enabling decentralized forms of creativity and ownership, or it can contract, literally and figuratively, resurfacing older tensions about access, openness, and unlicensed use. Further, as digital creativity becomes more derivative, we argue that these hidden risks, ironically, might contract the pool of available raw materials from which others draw upon. This will inevitably shrink the public domain, rendering culture accessible only by digital key. Ultimately, this Article concludes in favor of enabling more oversight, not less, over the world of digital art as a result.