Intellectual property (i.e., copyrights, trademarks, and patents) can touch many different parts of a business to safeguard against unauthorized use of a creation. The concept of protecting one’s own creations seems straightforward, but what happens when business owners use artificial intelligence (AI) to generate a work? Is the AI output legally protected? Businesses must understand the effects that AI has on their creative output and other business content. As AI continues to emerge as a prominent tool in society, it is important to ensure that any AI-generated output for your business is legally safeguarded.
Copyright and the Human Authorship Requirement
A copyright allows an owner of original works to engage in many exclusive rights, such as reproducing, displaying, and distributing the work. Common examples of copyrightable materials include images, poetry, and musical compositions.
Copyright has a human authorship requirement, which requires the work to be principally conceived, produced, and executed by a human, not a machine. However, AI may aid in developing a creative work if it does not automatically produce an output with minimal human prompting.
The use of generative AI in creative works continues to push the boundaries of the human authorship requirement. A determination must be made on a case-by case basis to assess how the AI tool was used in creating the final product. The U.S. Copyright Office has outlined some helpful examples of when the line between machine product and human authorship is crossed:
What qualifies as human authorship:
- Collecting and arranging AI images or words in a unique sequence that the author determines
- Substantial modification of AI-generated artwork
What does not qualify as human authorship:
- Prompting an AI technology to create an intricate artistic work where the technology primarily determines the artistic design
- Asking an AI technology to revise a pre-generated output
Takeaway: Works that are produced primarily by a human may be copyrighted, even if the human received some assistance from AI.
Trademark Law’s Murky Waters
Trademarks protect words, phrases, logos, and devices that are applied to identify goods or services used by a person in their business endeavors.
Perhaps unsurprisingly, trademark law is actively developing as it pertains to generative AI. Unlike copyright law, trademarks do not have a human authorship requirement. Upon first glance, business owners may think it is easier to have an AI-generated output protected by a trademark rather than a copyright. However, Trademarks present other unique issues when it comes to generative AI.
The Distinctiveness Requirement
Trademarked material must be distinctive, meaning it must function as a source identifier rather than a generic or descriptive term for the goods or services. The distinctiveness requirement may be more challenging to meet when using generative AI because the average generative AI tool pulls its “inspiration” for logos and other projects from large datasets (such as the internet). Generative AI is not inherently “creative” in the sense that it does not necessarily produce truly unique outputs in response to a prompt. Oftentimes, it takes a human’s input to meet the distinctiveness threshold.
Trademark Infringement
Though trademark law does not explicitly prohibit the use of AI in materials that qualify for protection, it is important to keep the risk of future trademark infringement lawsuits in mind when using generative AI for your business. AI uses similar, potentially trademarked, images or phrases based on pre-existing material on the internet. This may expose business owners to future unwanted lawsuits. Therefore, it is important to always conduct a comprehensive trademark clearance search to mitigate the risk of future unwanted lawsuits.
Takeaway: Trademark law can protect AI-generated content, but it may be more difficult to show the material is distinct and it could lead to future trademark infringement claims.
A Quick Note on Patents
Patents, which protect inventions from public use, have historically applied to human beings. In recent years, courts have reaffirmed this notion. In a 2022 case, Thaler v. Vidal, the United States Court of Appeals for the Federal Circuit stated that the Patent Act’s definition of “inventors” unambiguously meant human beings.
Notably, the Thaler court also clarified that a claim that AI-generated materials should be patentable was purely “speculative” in the context of the Patent Act, which requires inventors to make a declaration that they are the inventors. However, the Thaler court did not determine whether inventions created by human beings with the assistance of AI are eligible for patent protection.
In Short, Consult Our IP Attorneys
The future of AI is uncertain and constantly evolving. The legal world still has many unanswered questions regarding generative AI’s intersection with Intellectual Property law, but one thing is for certain: Generative AI is here to stay. If you have questions about how this information pertains to your business, our proficient Intellectual Property attorneys are available to advise you on your unique copyright and trademark matters.
FLB Summer Associate Bailey Reilly contributed to this blog.
