Whose Feeling Is It?

Few questions about AI start arguments faster than this one. An illustrator sees a generated picture win praise and says it is not art. Someone who has spent a week refining prompts says it is. A student writing an essay on it finds mostly opinion pieces that pick a side in the first line. This essay does something slower. People who say “that isn’t art” are usually applying one of three tests, often without naming it. Below, each test is stated in the words of someone who held it, applied to a machine-made image as honestly as I can manage, and checked for what it would also rule out. Then comes what the law in the United States has actually decided, which is narrower than either side tends to claim.

How the sources were handled. Every quotation below was copied from a text opened with a public request on 1 October 2026, and each one is recorded in this site’s source ledger with its address and the exact sentence. Tolstoy is quoted from Aylmer Maude’s English translation as published by Project Gutenberg. Danto’s 1964 paper is not freely available and I could not open it, so his view is described in my words and not quoted.

Test one: does it pass on a feeling?

Leo Tolstoy’s What Is Art? (1897) is the most quoted answer to the question in its own title, and it is blunter than most people remember. After a long survey of theories of beauty, all of which he rejects, he gives his own definition in chapter V:

Art is a human activity, consisting in this, that one man consciously, by means of certain external signs, hands on to others feelings he has lived through, and that other people are infected by these feelings, and also experience them.Leo Tolstoy, What Is Art?, chapter V, translated by Aylmer Maude

Tolstoy’s test has two halves, and both matter here. The first is on the receiver’s side. In chapter XV he calls infectiousness the one indubitable indication distinguishing real art from its counterfeit: if you feel what the maker felt, and feel joined with them and with others who feel it too, the thing is art. The second is on the maker’s side. A feeling has to have been lived through by someone and handed on consciously, and he says the strongest single condition of infection is sincerity: But most of all is the degree of infectiousness of art increased by the degree of sincerity in the artist. When an audience senses the maker does not feel what they are expressing, he writes, a resistance immediately springs up.

Apply that to a picture produced from a one-line prompt. A viewer may well be moved by it; image models are trained on millions of pictures that moved people, and they are good at reproducing the surface of feeling. That passes the receiver’s half. The maker’s half is harder. The model has no feelings it has lived through, so if a feeling is being transmitted at all it has to be the prompter’s. And the prompter’s feeling reached the image only through a sentence; the colours, lines and forms that Tolstoy names as the “external signs” were chosen by the model. On a strict reading, what moves the viewer was handed on by no one. On a generous reading, the prompter who had a feeling, tried hundreds of images and kept the one that carried it is doing something like what a photographer does with a camera: choosing, not drawing.

Two honest limits. First, Tolstoy’s test was never meant to be friendly to most of what galleries hang. He used it to dismiss Wagner’s Ring as counterfeit art, and in a footnote to chapter XVI he applies it to himself: I must, moreover, mention that I consign my own artistic productions to the category of bad art, excepting the story God sees the Truth, which seeks a place in the first class, and The Prisoner of the Caucasus, which belongs to the second. A test that demotes War and Peace is not a reliable instrument for sorting the art on anyone’s wall. Second, Tolstoy makes art depend on what happens inside the maker and the viewer, which nobody can inspect. The test tells you what question to ask (whose feeling is it?) rather than giving a verdict you can read off the image.

Test two: does the artworld take it in?

The second test starts from the opposite end. In 1964 the philosopher Arthur Danto published a short paper, “The Artworld”, in the Journal of Philosophy. His problem was Andy Warhol’s Brillo Box: an object that looked, to the eye, almost exactly like the cardboard cartons of soap pads stacked in any supermarket stockroom, yet was exhibited as art in a New York gallery. If the gallery box and the stockroom box look the same, whatever makes one of them art cannot be something you see. Danto’s answer was that seeing something as art depends on a background the eye cannot supply: a body of theory about art and a knowledge of its history. He called that background the artworld. (I could not open the paper itself, which sits behind a journal paywall, so this is a description in my own words rather than a quotation.)

Applied to AI images, Danto’s test gives a split answer and an uncomfortable one for both sides. It does not care how an image was made; Duchamp’s urinal and Warhol’s soap-pad box both made it in. So the fact that a machine produced the pixels cannot, on its own, disqualify anything. But the same test says that most generated images are not art either, in the way that most photographs on a phone are not: nobody has offered them as art, inside the conversation in which things count as art. What would make a particular AI image art, on this view, is its being made and shown as a move in that conversation. Ted Chiang, whose case against is set out below, notes that the film director Bennett Miller used DALL-E 2 to make images that were exhibited at the Gagosian gallery, generating more than a hundred thousand images to arrive at the twenty that were shown. On Danto’s terms that is a clear candidate. A wallpaper generated for a slide deck is not.

The limit here is the mirror of Tolstoy’s. Danto’s test explains how art status is conferred, but it makes the answer depend on what a fairly small professional world decides to do. For the illustrator who says “that isn’t art”, it can sound like a refusal to answer: it tells them the question will be settled by curators and critics, not by the work.

Test three: how many choices did someone make?

The third test is the one most working artists reach for, and it has been put most clearly by the science-fiction writer Ted Chiang in “Why A.I. Isn’t Going to Make Art”, published in The New Yorker on 31 August 2024. His generalisation is that art is something that results from making a lot of choices. A ten-thousand-word story involves something like ten thousand choices; a hundred-word prompt, about a hundred. The model has to fill in the rest, and it does so either by averaging, which he says is equivalent to the least interesting choices possible, or by imitating a particular artist. On images:

An artist—whether working digitally or with paint—implicitly makes far more decisions during the process of making a painting than would fit into a text prompt of a few hundred words.Ted Chiang, “Why A.I. Isn’t Going to Make Art”, The New Yorker, 31 August 2024

This test does something the other two do not: it gives a rough measure. It also cuts in both directions, and Chiang says so. He imagines a tool that would let someone enter tens of thousands of words over many sessions to control an image in fine detail, and writes: I’d say that a person could use such a program and still deserve to be called an artist. Bennett Miller’s hundred thousand generations are his example of someone working that way. His objection is to the ordinary use, the one the products are sold for, where a few words go in and a finished image comes out.

What the law has decided

The questions above are philosophical, and courts do not answer them. But two US decisions are often quoted as if they had, so it is worth reading what they actually say.

The court. Stephen Thaler, a computer scientist, built a system he called the Creativity Machine. It produced a picture that he titled A Recent Entrance to Paradise, and he applied to register its copyright, listing the machine as the sole author and himself as the owner. The Copyright Office refused; a district court agreed; and on 18 March 2025 the US Court of Appeals for the District of Columbia Circuit affirmed. The opinion, by Judge Millett, states the holding in one sentence:

The Creativity Machine cannot be the recognized author of a copyrighted work because the Copyright Act of 1976 requires all eligible work to be authored in the first instance by a human being.Thaler v. Perlmutter, No. 23-5233 (D.C. Cir. March 18, 2025), opinion of Circuit Judge Millett

The court was careful about what it was not deciding. It did not reach Thaler’s argument that he himself was the author, because that argument had not been raised before the agency. And it said the rule does not prohibit copyrighting work that was made by or with the assistance of artificial intelligence; it requires only that the author of that work be a human being—the person who created, operated, or used artificial intelligence—and not the machine itself. The opinion opens by framing what is at stake: who or what counts as the author is a question that implicates important property rights undergirding economic growth and creative innovation. Property, not aesthetics.

The Copyright Office. In January 2025 the US Copyright Office published Copyright and Artificial Intelligence, Part 2: Copyrightability. Its summary lists eight conclusions. The ones that bear on this question are these, quoted from that list:

Copyright does not extend to purely AI-generated material, or material where there is insufficient human control over the expressive elements.U.S. Copyright Office, Copyright and Artificial Intelligence, Part 2: Copyrightability, January 2025

• The use of AI tools to assist rather than stand in for human creativity does not affect the availability of copyright protection for the output.
• Whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analyzed on a case-by-case basis.
• Based on the functioning of current generally available technology, prompts do not alone provide sufficient control.
• Human authors are entitled to copyright in their works of authorship that are perceptible in AI-generated outputs, as well as the creative selection, coordination, or arrangement of material in the outputs, or creative modifications of the outputs.

Its reasoning on prompts is close to Chiang’s, though it arrives there from a different direction: Prompts essentially function as instructions that convey unprotectible ideas. The report also notes, in a footnote, that a second case challenging a refusal to register an AI-generated output, Allen v. Perlmutter, had been filed in Colorado in September 2024; it does not say how that case will end, and neither can I.

What this does and does not settle. The human-authorship rule decides who can own a work. It does not decide what counts as art, and neither the court nor the Office claims it does. A photograph of a sunset by a tourist is copyrighted the moment it is taken, whether or not anyone would call it art; a picture made entirely by a machine has no copyright owner under US law, whether or not a museum hangs it. So “the Copyright Office says AI art is not art” is false, and so is “the court ruled that AI can make art”. What the law has said is narrower and more useful: where a person controlled the expressive result, that person can be an author; where the machine made those choices, nobody is.

The strongest case that it is not art

Put at full strength, the case against does not rest on the pictures being ugly. Many are not. It rests on what art is for. Chiang states it at the end of his essay: Whether you are creating a novel or a painting or a film, you are engaged in an act of communication between you and your audience. A model, on his account, has no intention to communicate; he writes that ChatGPT feels nothing and desires nothing, and that generative AI reduces the amount of intention in the world. Combine that with the choice count and you get a precise claim: in a typical AI image, the parts that look most artful were chosen by no one who meant anything by them. That is Tolstoy’s sincerity condition in modern language. The viewer may be moved, but the thing moving them is, in Chiang’s word, mimicry. On this view, calling it art is not generous; it hides a loss, because it trains people to stop expecting that someone is on the other end.

The strongest case that it is

Put at full strength, the case for does not claim the machine is an artist. Its best statement I have read comes from Aaron Hertzmann, a computer graphics researcher, in “Can Computers Create Art?” (2018, written for the journal Arts). He agrees that a computer is not the author: he argues that artistic creation is primarily a social act, and that computer-generated art has, in every case to date, been credited to the human artist(s) behind the tools, such as the authors or users of the software. His case is that AI is a tool in human hands, and that we have had this argument before. When photography arrived, he recounts, many people held that it could not be art because a machine made it; and he opens that history with the painter Paul Delaroche, quoted as saying at a demonstration of the daguerreotype in 1839: From today, painting is dead! Photography became an art form anyway, through the choices photographers learned to make with the machine. His prediction:

Far from replacing artists, new technologies become new tools for artists, invigorating and changing art and culture.Aaron Hertzmann, “Can Computers Create Art?”, 2018 (arXiv:1801.04486)

Hertzmann wrote before today’s text-to-image products existed, so he did not address the one-line prompt directly. But his argument survives the change. If art is something people make for other people, then an image that a person conceived, iterated on, selected and offered to an audience is that person’s work, and the question “is it art?” has the same answer as for any photograph: sometimes, depending on what they did with it. Notice how close this is to Chiang’s own concession about the many-session tool, and to the Copyright Office’s line between a tool that assists and one that stands in. The two sides agree on more than their headlines suggest. Where they disagree is on whether the ordinary use, a few words in and an image out, involves enough of a person to count. What happened to the portrait painters whose trade the daguerreotype ended, and what being surpassed by a machine does and does not take from someone skilled, is the subject of a separate essay here, What Excellence Was For.

Three images, three answers

The tests give different answers for different kinds of AI image, which is why the argument never ends when it is had about “AI art” in general. A rough sorting, with the tests named:

• A picture from one short prompt, taken as it came. Tolstoy: no one’s lived feeling chose its forms. Chiang: too few choices. Danto: not art unless someone offers it as art. US law: no human author, so no copyright. Every test leans against.
• Thousands of generations, steered and selected over months, then exhibited. This is Miller’s case. Chiang himself allows that such a person could deserve to be called an artist; Danto’s test is met once it is shown; Hertzmann would call it art made with a new tool. The law would look at it case by case, and the selection and arrangement can be protected even where individual outputs are not.
• An artist’s own drawing or photograph, altered or extended with AI. Every test treats this mostly as the artist’s work, and the Copyright Office says copyright covers the human expression that is perceptible in the result.

What the argument shows

This essay does not settle whether AI art is art, and I do not think anyone can settle it for all cases, because the word does different jobs for different people. What the argument does show is what people want art to be.

Notice where every test ended up. Tolstoy asked whose feeling it was. Danto asked who offered it, and to whom. Chiang counted the choices a person made. Hertzmann conceded the computer is not the artist and looked for the human behind the tool. Even the law, which was not asking about art at all, went looking for a human being. None of these is a test of how a picture looks. Each is a way of asking whether someone is on the other end.

That is the real disagreement, and it is about what people want from art. Those who say AI images are art usually care most about what the image does to the viewer, and they are right that it can do a great deal. Those who say they are not care most about being addressed by another person, and they are right that, in the plainest use of these tools, no one has quite addressed them. The question that is left is not about machines. It is what you are looking for when you look at a picture: something beautiful, or someone.