Document Type

Article

Publication Date

9-2026

Abstract

Generative artificial intelligence (“Gen AI”) poses a challenge to copyright’s central idea: authorship. Efforts to address it in the US have simplistically hidden behind the “human authorship” requirement and thereby overlooked an important source of analytical guidance: the work made for hire doctrine. This essay shows how the work made for hire doctrine in the US is premised on a theory of authorship that is drawn from the construction of causation in the common law’s doctrines of vicarious liability. Tracing the history of this idea in the common law of employee authorship, it argues that the doctrine embodies a form of vicarious authorship that is predicated on vicarious causation. It then extends the idea of vicarious authorship to the outputs of Gen AI models, relying on a framework that mimics the way the relationship between principal and agent is seen to be causally related to the production of the work.

Disciplines

Intellectual Property Law | Law | Science and Technology Law

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