142 THE US-ISRAEL | Legal Review 2025/26 protection. The labor theory emphasizes the author’s right to the fruits of their creative efforts. The utilitarian theory, which treats copyright as a statutory (not natural) right, seeks to incentivize creativity by granting authors exclusive rights, thereby encouraging the production and dissemination of original works for social welfare and cultural advancement. The Romantic Author vs. The Industrial Reality To a certain extent, we still cling to the “Romantic” notion of the lone genius toiling in an attic. But in the modern world, most creation is industrial and collaborative. If an AI can produce a cinematic score that is indistinguishable from Hans Zimmer, does the “soul” of the author matter to the listener? If the law only protects the “human soul” through the lens of authorship, but the market only cares about the “efficient sound,” copyright law risks becoming an obsolete relic. However, various scholars, including Dan Burk for example, noted that the implications of automating this initial creation stage are that artificial intelligence will replace the type of work that has until now been exclusively reserved for human creativity. In other words, it will provide a “synthetic substitute for human creativity,” leading to the concern that AI will soon be able to create a large or infinite number of works, which could lead to the suppression of authentic human creativity. Ultimately, there is a risk that innovation will slow over time and contribute to the deterioration of collective innovation. We may be moving toward a “Post-Copyright” era where value is derived not from the ownership of a work, but from the authenticity of its origin or the speed of its deployment. The law must decide if it wants to protect the laborer or the investor. Navigating the Ownership Labyrinth: Who Owns the Output? Ownership of AI-generated works presents a fundamental challenge to copyright law, requiring a balance between four competing interests: individual rights (personal enjoyment, autonomy, and self-expression), private economic interests (author compensation and incentives), public interest (promoting innovation and societal welfare), and governmental interests (fair regulation and policysetting). Any allocation must be based on principles of justice, fairness, and cooperation that recognize the needs of both author and the public. If we accept that AI-generated works have value, the question becomes: who should own the rights? There are several competing theories, each with its own justifications and flaws: The Developer or Company Some argue that the programmer or the company that developed the AI should own the copyright. This is based on a utilitarian approach: providing a reward to those who invested massive resources and took risks to develop the technology. However, the developer often has no direct connection to the specific output created by a user, making this attribution feel legally “stretched.” The User (The “Prompter”) From an economic perspective, the user invests time and effort in guiding the AI to produce a specific result. Attributing ownership to the user encourages the “democratization of creation,” allowing people without traditional artistic skills to compete in the marketplace. “It is important to ensure that copyright law is recalibrated to adapt itself to these fascinating technological innovations, and to create the appropriate balance between the need to foster human creativity and the need to develop knowledge, creativity, and progress.”
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