The Columbia Journal of Law & the Arts

Vol. 49 No. 2 (2025)

Columbia Journal of Law & the Arts — Thu, 12 Feb 2026 00:00:00 +0000

Burden-Shifting: Amending United States Trade Regulations to Protect International Cultural Heritage Property During Armed Conflict

Nina Chandra — Wed, 11 Feb 2026 00:00:00 +0000

Front Matter

Columbia Journal of Law & the Arts — Wed, 11 Feb 2026 00:00:00 +0000

On the Devolution of Copyright Scholarship: Part I— Tracing the Digital Copyright Revolution

Peter S. Menell — Wed, 11 Feb 2026 00:00:00 +0000

As the digital revolution unfolded in the 1990s and early 2000s, a charismatic hacktivist faction took hold in the copyright legal academy. In its purest form, the copyleft movement celebrated the notion that “information wants to be free” and opposed copyright protection in cyberspace. Some copyleft scholars served as lead counsel in efforts to overturn copyright legislation and immunize filesharing enterprises from copyright liability, blurring the line between interpretive scholarship and policy analysis. Many academic amicus briefs took on the tactics of zealous advocates, selectively and misleadingly presenting empirical, statutory, and doctrinal analysis.

This Article chronicles the evolution of copyright law while tracing the devolution of copyright scholarship through this tumultuous era. It highlights the origins of the copyleft movement and ways in which many scholars lost sight of essential academic values—independence, objectivity, transparency, scrupulousness, methodological soundness, and analytical rigor—in an effort to persuade courts to remake copyright law through less than forthright and non-democratic means. In the process, they eroded the trust that courts had placed in the legal academy. As the Article shows, the courts have largely remained faithful to the rule of law in copyright cases and this has for the most part promoted cultural, social, and economic progress.

A follow-on article examines the chasm between judicial interpretation of copyright law and the views of many in the copyright academy through an empirical examination of Supreme Court academic briefs, anthropological analysis of the copyright legal academy. It then assesses the ramifications of the devolution of copyright scholarship for the judiciary, democratic institutions, the scholarly community, and society at large.

Reconciling Copyright Originality for Photography and Generative Artificial Intelligence

Zoe B. Kaiser, Kanu Song, Simon J. Frankel — Wed, 11 Feb 2026 00:00:00 +0000

Copyright protection requires creative choices—creative choices that manifest in the work for which protection is sought. We all understand this point in theory, but in practice it has proven difficult to apply to visual works. The contemporary treatment of photography and generative artificial intelligence (AI), two different technologies used to create images, illustrates this. Examples of courts holding photographs unprotected by copyright are few and far between; in contrast, the Copyright Office and federal courts have been reluctant to grant copyright protection to AI-generated elements of visual works. To sharpen the contrast with real-world examples: A photo of a sudden arrest, snapped without thought on a smartphone with default settings, has been found to be protected by copyright, while an AI-generated image refined over hundreds of prompts to illustrate a graphic novel has been denied protection. These seemingly incongruous outcomes may pose a challenge for copyright law as it seeks to regulate intellectual property rights across different media and technologies.

We do not argue here that the Copyright Office has been too harsh on a controversial emerging technology. Rather, we suggest that contemporary treatment of photography has become lax, prone to granting copyright with little or no analysis. Often, courts assume any photograph is protected by copyright and defer examination of what elements in the photograph (if any) might be protectable until forced to do so in connection with the infringement or fair use analysis. Instead, we suggest, courts should fully examine the originality of a work at the copyrightability stage. Recent Copyright Office actions on generative AI can provide a useful roadmap for a more rigorous originality analysis of visual works—specifically, by emphasizing the importance of tracing purported creative choices to an expressive result that manifests in the final work. Existing doctrines designed for infringement analysis, such as “thin copyright” and “dissection,” also offer useful conceptual models. Just as not every element in an image will be deemed creative for purposes of determining infringement, not every human choice should necessarily be deemed creative for purposes of finding originality. By closely analyzing the connection between creative choice and resulting expression in photographs at the originality stage, courts can return coherence and rigor to copyright doctrine for visual works.

AI Influencers and a Right of Publicity

Victoria L. Schwartz — Wed, 11 Feb 2026 00:00:00 +0000

The influencer industry has exploded over the past few decades with estimated valuations as high as hundreds of billions of dollars. Most influencers are humans who receive compensation for leveraging their social media followings to promote specific brands. More recently, however, so-called virtual influencers, such as Lil Miquela, who are CGI creations rather than actual people, have achieved success in the young influencer industry. Now, so-called AI influencers enter this rapidly developing field with artificial intelligence technology playing an increasing, but complicated role in the creation and curation of influencer content. This Article catalogs the diverse roles held by artificial intelligence in the influencer space situating its various uses within a broader spectrum of influencer use of technology.

This Article is the first to tackle a pair of important questions concerning whether the right of publicity applies to virtual and AI influencers, and whether it should apply. Descriptively, this Article examines state right of publicity regimes and analyzes whether these statutory or common law frameworks in their current form could apply to virtual or AI influencers. Normatively, the question of whether the right of publicity should apply to virtual or AI influencers is complicated by the fact that scholars and courts have not coalesced around a single theoretical justification for the right of publicity. By examining each of its possible theoretical justifications, the Article argues that there is a stronger case for applying the right of publicity to virtual and AI influencers under each justification than may immediately be apparent. Nonetheless, the strength and scope of the argument differ depending on the justification selected. Ideally this analysis will offer an opportunity for scholars, legislatures, and courts to sharpen their justifications for protecting the right of publicity into a theoretically defensible and coherent body, with broader implications not only for virtual and AI influencers, but the entire right of publicity doctrine.