Updated: Jul 6
When it comes to copyright and technology, the saying “everything old is new again” seems apt.
As businesses are increasingly incorporating artificial intelligence into practical uses like payroll, project management, content generation and customer service bots, legal questions are being raised that have not been entirely resolved. Specifically, there are legal uncertainties regarding ownership and control of intellectual property rights in AI-generated content, algorithms and know-how. Courts and lawmakers are starting to address these issues, but plenty of unknowns remain in this emerging area of intellectual property law. Read on for a discussion of how artificial intelligence is testing the bounds of intellectual property law.
What is Artificial Intelligence
Artificial intelligence, or AI, is the simulation of human intelligence by computers. Powered by machine learning, AI programs, such as ChatGPT, can recognize speech and patterns, decipher and draft code, make predictions and analyze complex problems. Importantly, AI can be creative in how it generates content, including works of art, computer programs and complex essays.
Does Copyright Protect AI?
AI users seeking protection under copyright law are facing resistance from the U.S. Copyright Office and the courts. Businesses and creators of all types that use AI should be aware of the latest legal trends around AI and consider whether the benefits of using AI to generate content outweigh the risks that the content will not be protected by copyright law.
Here are some recent, closely watched developments regarding copyright (and patent) protection for AI-generated content:
Monkey Selfies: Copyright protects “original works of authorship.” Do the works have to be created by humans? The Court of Appeals for the 9th Circuit addressed this issue in 2018, when it upheld a lower court ruling that a monkey lacked standing under the Copyright Act to sue for infringement of selfies the monkey took using a photographer’s camera. The decision is significant because it made clear that courts are unwilling to extend copyright protection beyond humans unless Congress specifically grants such rights. The case is Naruto v. Slater, 9th Cir. No. 16-15469.
Creativity Machine: Artist Stephen Thaler is continuing his efforts to obtain copyright registrations for AI art generated by his “Creativity Machine,” which created artwork intended to simulate a near-death experience. In 2019 and in early 2022, the Copyright Office refused registration, finding the work “lacks the human authorship necessary to support a copyright claim.” Thaler filed suit in federal court in Washington, D.C. last summer and moved for summary judgment upholding his position as a matter of law earlier this month. The case is Thaler v. Perlmutter, D.D.C. 20-cv-00903.
DABUS: Thaler has also sought patent protection identifying an AI program Device for the Autonomous Bootstrapping of Unified Sentience (DABUS), as an inventor on patents teaching a “neural flame” and a “fractal container.” The U.S. Patent and Trademark Office denied his request, finding an inventor must be a natural person. A federal court agreed, and so did the Court of Appeals for the Federal Circuit. Thaler reportedly plans to take the case to the U.S. Supreme Court. The case is Thaler v. Vidal, Fed. Cir., No. 21-02347.
“Zarya of the Dawn:” The U.S. Copyright Office initially granted copyright registration to Kristina Kashtanova for her partially AI-generated graphic novel “Zarya of the Dawn” in September 2022. A month later, Kashtanova received notice that the registration — publicized as the first-known instance of AI-generated work receiving a registration — may be canceled because it lacked “human authorship.” The case remains unresolved as Kashtanova recently submitted a letter describing her creative process and seeking to prove substantial human involvement.
Outside the Courts: The White House issued a “Blueprint for an AI Bill of Rights” proposing a roadmap for the responsible use of AI in October 2022 and the National Institute of Standards and Technology plans to issue an AI Risk Management Framework in early 2023. Additionally, the Senate Armed Forces Subcommittee on Cybersecurity held a hearing to receive testimony on Artificial Intelligence Applications to Operations in Cyberspace last summer.
If you use AI to run your business or create commercial art, absent a major change in the law, the content that is created may not be protected by copyright or patent law. Depending on the situation, there may be other steps available to protect AI-generated content, including trade secret protection for unpublished works and contractual provisions in business transactions. Seek guidance from an experienced intellectual property law attorney to learn how to safeguard AI-generated assets.
Nancy J. Mertzel
Mertzel Law PLLC
1204 Broadway, 4th Floor
New York, NY, 10001