Document Type

Article

Publication Date

4-7-2022

Journal

Seton Hall Law Review

Volume

52

Issue

4

First Page

1137

Last Page

1156

Abstract

This Essay turns questions about artificial intelligence and copyright law around. Rather than focus on algorithms as potential authors, this Essay argues for more attention to the role of algorithms as gatekeepers on social media and how creators adapt their creative choices to meet the demands of these automated tastemakers. Using TikTok’s “For You” algorithm and its role in breaking Lil Nas X’s hit song “Old Town Road” as a case study, this Essay poses the question whether algorithmic gatekeeping is simply a difference in degree or a difference in kind from an artist’s perspective. While tentative, this Essay concludes that this change is a difference in kind because of the rule-bound nature of software, the absence of transparency and accountability for algorithmic decision making, and the flawed data models that inform this form of cultural gatekeeping.

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