In my previous post, Part 3 – I put forward a proposal for a new legal standard, which I call “Conceptual Orchestration”. This follows on from my discussion of the twin issues of authorship and fair use, otherwise known as “fair dealing” some commonwealth countries.

In this post I discuss a Potpourri of issues including derivative works, works that are homogenised and pastiche. Before doing so, I asked Claude AI to comment on the image that accompanies this post.  It is of course a well-known AI generated artwork. I also asked Claude to opine on whether the work was original or derived from other works. Here is the rather interesting answer:

“It is in a style that draws on the broader “epic fantasy concept art” genre that dominated AI art prompting in 2022–2023. The compositional language — luminous portal, figures in flowing robes viewed from behind, ornate baroque architecture — is a well-worn trope in that space.

Originality Question

This is genuinely contested legal and aesthetic territory, and directly relevant to your own research interests:

• The image is not a copy of any specific existing artwork
• But it is deeply derivative in style and composition — trained on millions of human artworks without licence or compensation
• Under current law in most jurisdictions (NZ, Australia, US, UK), style itself is not protectable, so the stylistic debt doesn’t constitute infringement in a legal sense
• The authorship question is live: if a human provided only a text prompt, most copyright offices (including the US Copyright Office post-Thaler) would deny or significantly limit protection

So it occupies that fascinating liminal space your blog covers — arguably original as a specific output, yet substantially a statistical recombination of human creative labour.”

Not a bad response I thought.  So, lets look at how derivative works fit into this scheme. Eleonora Rosati, writing in The IP Kat, discusses the issue of whether a derivative work may be original and whether protection might also arise from efforts to reconstruct missing parts in that earlier work.[i] In doing so, she looks at the CJEU’s recent consideration of derivative works in Institutul G. Călinescu C-649/23. Rosati pointed out that this is the first opportunity that the CJEU has had to look at the issue of derivative works (in this case, a Latin text in the public domain based on an earlier manuscript) but importantly, to assess the question of subsistence, unlike earlier decisions which considered infringement, including in relation to parody, music sampling, and the downloading and use of photographs.

Advocate General Spielmann’s opinion suggests that a derivative work is protected by copyright provided the originality requirements are met. Reconstruction efforts, even when attempting fidelity to original sources, can constitute original expression through creative choices in completing missing elements, application of specialised knowledge and intuition, and imposition of the reconstructor’s personality on the work.

The Advocate General’s opinion that the concept of a “work” central to the copyright regime encompasses both primary and secondary, or derivative, works is an important starting point because arguably all works in which AI has played a material part are to some extent derivative. Indeed, in the case of a work based on one or two specific pieces of earlier Latin research, the connection would be an obvious one. The real difficulty arises when, under the European notion, in order to be original, the work must arise out of both free and creative choices by the author that reflect the author’s personality. Tension also arises because of earlier jurisprudence in the EU that the element of freedom and creativity must involve choices made by the author, ie a creative human being.

What I find interesting about the opinion from an authorship perspective is less about whether applied art should receive the same recognition as fine art. What is more pertinent is the analysis on how subsistence is assessed when it comes to derivative works and it being a fact intensive exercise taking into account the creative process, the type of work, and the specific competencies and skills of the authors.

In my view, this well-established framework could be extended to AI-assisted works where humans make creative choices in prompt engineering, exercise judgment in selecting and refining AI outputs, apply personal knowledge and aesthetic preferences, and shape the overall creative vision, but are ultimately assisted by AI in creating the copyright work.

While I am advocating for change in the law, I am also mindful of the risks. Copyright law will need to develop mechanisms to incentivise distinctive human creative input, protect against over-reliance on AI generation, and maintain cultural and aesthetic diversity.

Another, perhaps less visible, but equally important issue we have to grapple with is homogenisation. Research demonstrates that AI-generated content tends toward homogenisation, with AI users producing more similar outputs compared to human-only creators. This raises concerns about aesthetic flattening through reduction in stylistic diversity, loss of individual creative voice through convergence toward AI training patterns, and cultural implications including potential erosion of diverse creative traditions.

Pastiche is also going to test our mettle. A pastiche is a work of art, literature, music, or other creative form that imitates the style of another artist, genre, or period—typically as a form of homage or celebration rather than mockery. Eleonora Rosati, writing in The IP Kat, discussed Attorney General Emiliou’s opinion in Pelham II.[ii] Rosati describes pastiche as a rather odd thing and as being nested between parody and caricature and that the whole notion of “pastiche” has been overlooked for many years (stemming from the fact that it has been lumped together with parody and caricature and treated much the same) but it is now front and centre and being looked at in its own right.

The AG proposed maintaining a restrictive definition of pastiche. This would impact on AI-assisted creation. Pastiche requirements include that it evokes existing work through distinctive “aesthetic language”, maintains a noticeable difference from the source material, and demonstrates an intent for recognition as an imitation. However, the proposal made by the AG was more policy-driven and recommended that the EU legislature introduce:

an exception dedicated to artistic reuse of protected material (such as the ‘free use’ clause in German law), allowing a concrete, case-by-case balancing of the rights and interests of the parties, would help in that regard. It would support highly creative and, thus, socially valuable cases of artistic reuse (while keeping uninspired copying at bay). (My highlighting)

If adopted, such a provision would arguably help frame the new authorship test that I am attempting to tease out in this article. AI’s tendency to synthesise training data could complicate pastiche analysis through difficulty determining specific source works in AI output, challenges in proving intentional imitation, and questions about recognisability of AI-mediated references.

The music industry provides the most precise analogy for conceptual orchestration. Musical arrangements and orchestrations of copyrighted works are recognised as derivative works and defined under Section 101 of the US Copyright Act, as the arranger’s creative choices in adapting a composition for different instrumentation create new, copyrightable expressions. The provision defines a derivative work as one based upon one or more pre-existing works, where a work is recast, transformed, or adapted. Key principles from musical orchestration cases establish that creative choices in instrumentation and adaptation constitute original expression, conceptual frameworks provided by composers are distinguished from technical execution by orchestrators, and collaborative arrangements can result in joint authorship when both conceptual and technical contributions meet originality thresholds. The case law suggests that providing conceptual direction, which includes thematic development, structural choices, or stylistic direction, can constitute copyrightable contribution even when others execute the technical implementation.

[i]      Eleonora Rosati, “AG Spielmann advises CJEU to rule that a derivative work may be original and protection could also stem from efforts to reconstruct missing parts in someone else’s work,” The IP Kat, June 26, 2025, https://ipkitten.blogspot.com/2025/06/ag-spielmann-advises-cjeu-to-rule-that.html.

[ii]     Eleonora Rosati, “AG Emiliou advises CJEU on pastiche (while adopting very critical stance on EU copyright system as a whole and past CJEU case law too),” The IP Kat, June 18, 2025