Christie’s AI Auction and CARFAC’s Copyright Recommendations
Thoughts on the rise and controversies over augmented AI art and the implications for the Canadian market.
In 2023 the Journal of Cultural Economics1 published a study that looked at how artists using appropriation and any subsequent legal copyright infringement proceedings impacted secondary market value. This study looking at artists from the “Pictures Generation” of the 1980s and 90s is more relevant than ever in thinking about present and future market conditions as artists use and have been used by generative Artificial Intelligence (AI).
Christie’s New York is making history with Augmented Intelligence, its first-ever auction dedicated entirely to AI-generated art. Running from February 20 to March 5, 2025, the sale features over 20 lots including sculpture, painting, prints, works on paper, digitally native works, screens, interactive works, and light boxes. What unites these diverse works is their exploration of the intersection between human agency and artificial intelligence.
In fact, the sale’s name, Augmented Intelligence, points to this very relationship. In its technical definition, augmented intelligence refers to a human-centered partnership model of people and AI working together to enhance cognitive performance, including learning, decision making and new experiences2—here art.
The artists included in the Christie’s sale—Refik Anadol, Harold Cohen, Pindar Van Arman, Holly Herndon & Mat Dryhurst, and Claire Silver—work at this intersection. More importantly, when taken together their art practices and outputs are doing the creative and theoretical work of navigating and envisioning this new paradigm shift towards a world where humans and AI must come to terms. As always, artists are doing the important reflective and reflexive work of any given moment.
However, the sale has come under intense scrutiny. At the time of writing, an open letter with over 4,000 signatures is calling for the show’s cancellation, arguing that generative AI companies, including OpenAI, Anthropic, Microsoft, Google, and Meta, use artists' copyrighted material without consent. Text and Data Mining (TDM) is the term used to describe the information used to train generative AI and refers to the automated process of selecting and utilizing large amounts of text or data from the internet. Part of that data is artists’ works as they have been made, reproduced, or circulated on the internet.
This brings us into the realm of legal protections and copyright law. In Canada, the Copyright Act outlines artists’ rights around their work and the protective measures in place to ensure those rights.
CARFAC, Canada’s non-profit advocacy organization for professional visual artists, has put a great deal of thought into this. In January of 2024 they released “CARFAC-RAAV’s recommendations regarding AI and visual artists” in which they point to the Copyright Act and the Federal Government’s responsibility therein to ensure artists’ rights when it comes to generative AI and TDM. In the report they write:
The Copyright Act is sufficient and applicable to protect the rights of creators in the context of generative AI. There is no reason to believe that current copyright laws do not, or should not, apply. Situations in which private companies use, without permission, the copyrighted works of Canadian artists to develop and grow the value of their commercial products is precisely the kind of scenario that the Copyright Act should prevent.
The Federal Government should refrain from implementing new fair dealing exceptions for TDM. Doing so would devastate the economic environment for Canadian artists – many of whom live at or under the poverty line. A TDM exception would result in long-term negative social and cultural externalities, including compromising the global competitiveness of Canadian arts and culture and harming small creative businesses.
In short, CARFAC is urging that, first, artists should receive remuneration, either directly or through the issuing of licences for use in TDM, as per the Copyright Act; and second, that the companies that train their generative AI on TDM should not be accommodated by the Federal Government in a way that would deprive artists of this remuneration, and that such companies should be required to comply with current Canadian copyright law.
This sounds good. I like when artists and their works are used with permission, given credit, and fairly compensated.
But now, what about artworks made using generative AI?
I am certainly not a lawyer. But I am an art historian who has seen these questions come up before in the history of image making. I can point you to Sherrie Levine or Richard Prince, of course. But I can also point you to the early moments of photography in 1839 where issues of ownership, reuse, and reproduction all came to a rupture when—gasp!—a painting could be photographed and circulated. Were the painters whose work was shown in the First Impressionist Exhibition in 1874 compensated when photographer Nadar photographed the show and sold the photographs to the public?
I’m being hyperbolic if only to show that the history of image making is filled with the unintentional and intentional use of the artwork of others. There are always negative consequences. In fact, the 2023 Journal of Cultural Economics study demonstrates that after a 2013 U.S. court decision surrounding Richard Prince and his appropriation of the work of another photographer in which the artist and the Gagosian Gallery were found liable for copyright infringement, there was a decreased and relocation to markets outside the United States not just for Prince, but for all artists using appropriation.3 The market cooled as a cautionary reaction.
But, there are positive outcomes too. Artists sit at the cusp of thought and reflection on the conditions of the world we live in. They have grappled with the invention of photography, they have challenged concepts of artistic genius and consumer capitalism (the works of Richard Prince made a market recovery and continue to have a strong secondary market), and now they grapple with a world in which AI has newfound implications.
So, back to Christie’s.
Calls to cancel Augmented Intelligence signal to federal regulators in the U.S., Canada, and beyond that urgent action is needed to protect artists' rights and hold generative AI companies accountable for potential copyright violations. Again, a very good thing.
I think that canceling the sale would, at the same time, unnecessarily punish the artists whose work is included instead of rewarding them for their creative and intellectual investigations of human-AI relationships in art making practices. Consider Berlin-based artists Holly Herndon and Mat Dryhurst, whose works Embedding Study 1 and Embedding Study 2, featured both in this sale and the 2024 Whitney Biennale, critically examine AI training models, intellectual property, and authorship. The pair have also been activists and advocates for artists harmed by generative AI training, even coming up with a website named Spawning that helps artists remove their work TDM.
These artists are also keenly aware of their role within the art market, often using AI to critique the very systems in which they participate. Alexander Reben’s work, for instance, turns the auction process itself into a performance. A robotic painter, programmed with custom AI models, will be stationed at Rockefeller Center, gradually completing a large-scale canvas as bids increase—each new addition to the painting directly tied to the rising sale price.
While Christie’s sale underscores the growing legitimacy of AI-generated art, it also highlights the unresolved legal and ethical issues surrounding its creation of which the impacts on the market may follow precedents set when other similar copyright issues have arisen.
For Canadian collectors, the rise of AI-generated art presents both opportunities and challenges. As Augmented Intelligence signals increasing institutional recognition of AI art, Canadian buyers and appraisers alike must consider how such works fit within existing valuation frameworks. Will AI-assisted pieces hold long-term market value, or will legal uncertainties and challenges dampen demand? Given Canada’s stricter copyright stance, collectors may feel a need to scrutinize provenance more carefully, ensuring that AI-generated works comply with ethical and legal standards.
As an appraiser specializing in photography and multiples, I see striking parallels between the paradigm shift AI is creating and the one photography introduced in the 19th century. Photography disrupted traditional notions of authorship and originality, forcing the art world to rethink what constitutes artistic creation—just as AI is doing now. Early skeptics dismissed photography as mechanical rather than creative, yet it evolved into a dominant artistic medium. Similarly, augmented AI art challenges our definitions of artistic intent and modes of production.
As appraisers, collectors, and institutions navigate this shift, we must develop new frameworks that recognize AI as a tool—one that, like photography did nearly 200 years ago, expands artistic possibilities rather than diminishing them. Historically, the art market has been reactionary to technological, conceptual, and legal disruptions, before reaching a new equilibrium. As seen with past paradigm shifts, initial resistance and uncertainty give way to adaptation, regulation, and ultimately, acceptance.
Augmented AI art is likely to follow a similar trajectory, with legal disputes and market hesitation paving the way for clearer guidelines and a more defined place within the art world.
I need to point out that they call appropriation “follow-on innovation”!! Alexander Cuntz and Matthias Sahli, “Intermediary liability and trade in follow-on innovation” Journal of Cultural Economics 48 (2024): 1-42.
Gartner. IT Glossary. https://www.gartner.com/en/information-technology/glossary/augmented-intelligence
From the article: ”The artist Richard Prince and the Gagosian Gallery as the market intermediary were sued for copyright infringement by the photographer Cariou for incorporating altered versions of his photographs into Prince’s series of artwork. The lower court ruled in favor of the upstream photographer Cariou and found that the whole artwork series was infringing the copyright in the original con- tent. Interestingly, not only was Prince held liable for copyright infringement but the Gagosian Gallery was also found to have ‘vicarious and contributory’ liability.”