“People talk about how much energy it takes to train an AI model … But it also takes a lot of energy to train a human. It takes like 20 years of life and all of the food you eat during that time before you get smart.” – Sam Altman

“The difference is that humans aren't an inefficient line item. They're the point.” – L. David Fairchild

Earlier this year, the Supreme Court declined to hear a case (Thaler v. Perlmutter) about whether art generated entirely by artificial intelligence can be copyrighted. The DC Circuit had ruled against a computer scientist who listed AI as the sole author on a work of art, so the US Copyright Office can maintain its human authorship requirement, at least for now. Although the statutory interpretation undergirding the decision is sound—among other things, the Copyright Act expressly refers to the “intention,” “life,” and “surviving children” of an author—there is a deeper constitutional argument, rooted in the small “r”, republican foundations of the copyright system itself, that has received less attention. That argument matters because it provides a more durable foundation for eventual Supreme Court review of future cases—and guardrails for any reform.

The connection between copyright and civic education

The Constitution grants Congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” James Madison argued that for both copyrights and patents,“the public good fully coincides… ­with the claims of individuals.” However, the Founders also understood that self-interest should be channeled towards socially beneficial ends, so they endorsed limiting and conditioning incentives accordingly.

Unlike rights in real property, which may be granted in perpetuity, copyrights and patents are inherently temporary — a bargain between creators and society. Those impermanent monopolies served not only an economic purpose but also a republican purpose: generating and spreading knowledge to equip citizens for self-governance.

As attorney Stuart Duncan Smith explains, republican government “relies on public knowledge” in at least two ways: by depending upon 1) “enlightened, virtuous representatives” and 2) voters capable of choosing representatives wisely. This view is reflected in founding-era sources. The Massachusetts Constitution of 1780 described "[w]isdom and knowledge, as well as virtue, diffused generally among the body of the people" as "necessary for the preservation of their rights and liberties" — and explained that those principles called for support of public education and “rewards” for the arts and sciences.

Thomas Jefferson and Benjamin Franklin argued that free universal education was vital for instilling republican values in future generations. They sought to spread the type of learning once reserved for princes across society because “all children who would someday take their place among the citizenry were the would-be rulers.”

How could government best foster the curriculum necessary to prepare the public for this profound responsibility? Schoolmaster and dictionary-writer Noah Webster, who persuaded states to adopt copyright laws before the federal Constitution was ratified, argued that protecting authors would yield the schoolbooks, geographies, and dictionaries necessary to forge a distinctly American culture—a precondition for republicanism. In that view, authors’ rights were directly coupled to cultivating the capacity for self-government.

Of course, copyright was never limited only to what the government deemed useful for self-governance. But the republican spirit continued to animate the course of copyright law. The first federal Copyright Act (1790) was entitled "An Act for the encouragement of learning," protected only published works, and required authors to announce their works in a newspaper for four weeks. Disclosure to the public was the point; commercialization alone did not confer protection.

And in 1834, the Supreme Court confirmed that perpetual copyright was constitutionally impermissible — reflecting the Framers' view that such rights are carefully bounded instruments for serving society.

As law professor Jane Ginsburg explains, every historical justification for copyrights—natural rights, fairness to creators, incentives for innovation, inducements to disclose —presupposes a human creator. That was no accident.

The value of widespread human creativity in a democratic society

Who should be eligible for the rewards of copyright protection? The answer shapes human activities across an entire society. From a republican perspective, human creation is worth promoting not merely for its outputs, but because a society of people who write, create, and invent is better equipped for self-governance.

This is especially true under the “nondomination” strain of republicanism. As academic Piers Eaton explains, this philosophy holds that freedom is not simply the absence of interference in one’s affairs, but exists only when no one has the capacity to exercise arbitrary power over others. It is, arguably, more difficult to exercise arbitrary control over a republic of creators than over a populace conditioned only to consume.

To be clear, this vision does not require every citizen to be an author or inventor. Webster did not argue that every American needed to write schoolbooks, and as a teacher, he surely knew that not every student completes their schooling. What he saw, instead, was that a republic requires a critical mass of thinking citizens to function.

One concern with AI-generated creations—especially in tandem with aggressive corporate assertions of fair use—is that systematically routing economic rewards away from humans risks eroding the critical mass of creators needed for self-governance. The republican tradition does not tell us precisely where the threshold lies, but it tells us which side to err on. And as Thomas Paine argued, allowing the dead hand of the past to govern the present is an imposition on living people's capacity for reason and self-determination. The same could be said for routing more rights towards the impersonal, immortal shareholder-value maximizing hand.

Of course, many corporations already own copyrights assigned by humans under the “work for hire” doctrine. But that still presupposes an original human creative act. When a human assigns copyrights, the system has done its republican work: the human developed and exercised creative judgment, then contributed to the collective knowledge of the republic. The Ninth Circuit’s ruling that a monkey selfie did not qualify for copyright protection confirms that copyrights are not simply a reward for output.

Moreover, AI is increasingly shaping what people know and how they think. Even if corporations do not use their power for propaganda or censorship, their overwhelming capacity to exert such arbitrary power over civic life threatens freedom. Expanding copyright eligibility not only cuts humans out of economic rewards but also accelerates the concentration of cultural power in institutions that are answerable only to global shareholders, not to citizens. Copyright law has already taken misguided turns towards fostering corporate dominance; this would further endanger the distributed, participatory character of republican governance.

Drawing the line

The hardest practical question is where human authorship ends and AI generation begins. The case the Supreme Court let stand was an easy binary: pure AI authorship meant no human creativity.

Future cases will not be so easy. But the republican framework supports a core interpretive principle: whether a human exercised substantive creative judgment in the process. The Copyright Office has been developing similar principles in its guidance.

If humans exercise some control over the execution of works, the Copyright Office will—and has—registered works that are AI-assisted; protection is appropriate when AI is used as an instrument of human creative judgment, much as a camera executes a photographer's vision. Selecting and arranging unprotectable AI-generated components can even confer protection on work as a whole. The more specific a prompt is and the more it constrains output to be more replicable, the more likely it is to demonstrate sufficient human judgment. However, as Professor Ginsburg explains, entering a generic prompt for an idea, like “draw me a sheep,” is not protectable.

Drawing lines in particular cases will require fact-intensive judgment. But that is normal in our legal system. Courts already routinely make analogous qualitative assessments— whether a use of copyrighted material is transformative, whether an invention would have been non-obvious to a person skilled in the art, whether a marketing practice is unfair or deceptive, or whether conduct meets a reasonable person standard.

Any objection that human-authorship determinations are unworkable proves too much. The same objection would undermine fair use and other common legal doctrines. Agencies and courts are well-practiced at drawing lines in hard cases. These distinctions are no harder than many they already make, and will become easier over time through case-by-case common law development and as adjudicators become more familiar with these tools.

Closing thoughts

Courts and the Copyright Office are moving in the right direction on statutory grounds. To the extent that Congress contemplates any reform, it should make the human authorship and inventorship requirement explicit in both the Copyright and Patent Acts, while codifying republican line-drawing principles.

Sam Altman is right that it takes enormous energy to train a human. The Founders thought that energy well spent. We should calibrate our incentives for creative work accordingly.