This event is organized by the Schwartz Reisman Institute for Technology and Society.

Note: Event details may change. Please refer to the Schwartz Reisman Institute for Technology and Society’s events page for the most current information.

Our weekly SRI Seminar Series welcomes Sonia Katyal, Distinguished Professor of Law at the University of California, Berkeley. A leading scholar on the intersection of technology, intellectual property, and civil rights, Katyal’s work explores how emerging legal frameworks shape access, expression, and innovation.

In this talk, Katyal will examine the growing tension between generative AI and the legal regimes that govern art and creativity. Drawing from her recent work developed with Angela Zhao, she argues that while generative AI holds promise for expanding creative possibilities, restrictive licensing and private contracts risk confining artistic production and shrinking the public domain. Katyal will explore how copyright and trademark law might respond to these changes—and what’s at stake for the future of culture, ownership, and creative freedom.

Moderator: Anna Su, Faculty of Law

Location: Online

Talk title:

“Art in walled gardens”

Abstract:

Years ago, Lawrence Lessig warned society of the dangers of a “permission culture” and a “pay per use” society, requiring licenses in order to create. With generative AI’s emergence as a catalyst for the rise of the digital creative marketplace, we are seeing these predictions come to pass. As we argue, the unsettled law surrounding digital art is an important prism with which to examine the broader future of art and technology in the age of artificial intelligence. While many scholars rightfully question the novelty of these issues, we argue that irrespective of those questions, their real danger lies in generative AI’s ability to control creativity, through contractual restrictions that can be built into their design.

Digital art forces us to contemplate how these paradigms–contract, creativity, and intellectual property–carry both limits and possibilities within an emerging world of private ordering. In particular, copyright and trademark law, increasingly, will be asked to respond to these shifts. It can either expand in similar ways, loosening its grip and enabling generative AI to propel forms of creativity and ownership, or it can contract, resurfacing older tensions about access, openness, and unlicensed use, all while ultimately constraining generative AI’s power to create transformative digital artworks. As generative AI bolsters digital creativity, we argue that putting such creativity in the hands of art licensors risks contracting not only the pool of available raw materials from which artists draw upon, but also the capabilities of generative AI that empower artists to turn those materials into transformative artworks. This tendency risks shrinking innovation and creativity in the public domain, rendering culture something accessible only by digital key. In this article, we argue that these privately ordered worlds, facilitated by restrictive licenses, risk producing a world where creativity is conformed—and thus transformed —not by intellectual property principles, but by contractual control.

This presentation is based on joint work developed with Angela Zhao.

Suggested reading: 

Sonia Katyal and Angela Zhao, “Art in Walled Gardens,” University of California Law Journal (formerly Hastings Law Journal), forthcoming. Available at SSRN (February 15, 2025): https://ssrn.com/abstract=5163667

About Sonia Katyal

Sonia Katyal’s work focuses on the intersection of technology, intellectual property, and civil rights (including antidiscrimination, privacy, and freedom of speech). Katyal’s current projects focus on artificial intelligence and intellectual property; trademark law, branding and advertising; the intersection between the right to information and human rights; and a variety of projects on the intersection between art law, cultural heritage and new media.  As a member of the university-wide Haas LGBTQ Citizenship Cluster, Katyal also works on matters regarding law, gender and sexuality.

Katyal’s recent publications include Technoheritage, in the California Law Review; Rethinking Private Accountability in the Age of Artificial Intelligence, in the UCLA Law Review; The Paradox of Source Code Secrecy, in the Cornell Law Review; Transparenthood in the Michigan Law Review (with Ilona Turner); Trademarks, Artificial Intelligence, and the Role of the Private Sector, also in the Berkeley Technology Law Journal (with Aniket Kesari); The Gender Panopticon in the UCLA Law Review (with Jessica Jung); and From Trade Secrecy to Seclusion in Georgetown Law Journal (with Charles Tait Graves).  She has also previously published shorter pieces with the New York Times, Washington Post, CNN, Boston Globe’s Ideas section, Hyperallergic, Los Angeles Times, Slate, and the National Law Journal, and has also been cited by the Supreme Court. 

Katyal has won several awards for her work, including an honorable mention in the American Association of Law Schools Scholarly Papers Competition, a Yale Cybercrime Award, and is a three-time winner of a Dukeminier Award from the Williams Project at UCLA for her writing on gender and sexuality. Her recent articles, The Paradox of Source Code Secrecy, was selected for inclusion in the Best Intellectual Property articles of 2019; and From Trade Secrecy to Seclusion (with Tait Graves) won the Law, Science and Innovation/Intellectual Property Prize from the Sandra Day O’Connor College of Law in 2022.

During the Obama administration, Katyal was selected by U.S. Commerce Secretary Penny Pritzker to be part of the inaugural U.S. Commerce Department’s Digital Economy Board of Advisors.

About the SRI Seminar Series

The SRI Seminar Series brings together the Schwartz Reisman community and beyond for a robust exchange of ideas that advance scholarship at the intersection of technology and society. Seminars are led by a leading or emerging scholar and feature extensive discussion.

Each week, a featured speaker will present for 45 minutes, followed by an open discussion. Registered attendees will be emailed a Zoom link before the event begins. The event will be recorded and posted online.