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Published August 15, 2023

Catherine Cavella, ESQ.


Artificial intelligence (AI) is a more regular part of our lives thanks to recent advancements in AI technologies. These programs are more readily accessible to everyday folks, allowing the masses to use AI to generate content such as articles, images, videos, sounds, music, and more.


These recent advancements and the sudden widespread use of AI prompt immediate questions about intellectual property rights. Who owns the work generated by an AI program? Who owns the prompts fed into AI programs like Open AI’s ChatGPT and Google’s Bard? Are my intellectual property rights being infringed upon in the way these programs are trained?


To answer these questions, we look to current precedent, case law, and what these companies themselves say about intellectual property rights.


Who Owns the Work Generated by an AI Program?


Implementing AI into the creative process presents opportunities to be more efficient and productive. So, if you’re doing this or plan to do so, what rights do you have to claim intellectual property rights on what you produce?


We look immediately to a recent decision by the U.S. Supreme Court for an answer to this question. Even if the AI creates the work, the Court says, the AI does not get any intellectual property rights in the work produced by the program, and neither does the inventor of the AI. A computer scientist attempted to sue for IP rights in the designs produced by an AI program he invented, but the Court declined to hear his appeal of lower court decisions that denied his claim.


In this case, the lower courts and Supreme Court upheld the precedent that inventorship is for humans only. This means a human cannot claim to have invented something that artificial intelligence exclusively produced. This same logic applied when the question came up about a monkey owning rights to a selfie.


Recent guidance by the U.S. Copyright Office furthers this conclusion by stating “If a work’s traditional elements of authorship were produced by a machine, the work lacks human authorship and the Office will not register it.” Essentially, AI programs are viewed in the same vein as a pen – as a tool. A pen is a tool of creation but is not an author entitled to intellectual property rights. If a work is mostly created by human originality with smaller elements from AI then the work is still eligible for copyright protection.


Who Owns the Prompts Fed Into AI Programs?


Programs like ChatGPT and Bard do not currently attempt to claim IP protection on the works generated, instead passing all responsibility onto the user. The same is said for the prompts put into them. These companies do not claim to own the prompts people use to generate content, which is an important element if you or your company plans to consistently use these programs to generate content.


You own the prompts and therefore are free to use them as you please. It has not yet been decided whether or not those prompts themselves are eligible for copyright protection. Shorts words and phrases are not eligible for copyright protection, so according to the law today prompts would not qualify as “works” entitled to copyright. But as use of AI to create content becomes more prevalent, it is possible the law might in the future develop some legal framework (copyright or otherwise) to protect valuable AI prompts as intellectual property.


If you are using generative AI, you need to be careful about how you use the work you put in and get out. These programs are essentially saying it is up to you to ensure you are not infringing upon the IP rights of others.


Are My IP Rights Being Infringed Upon by AI Programs?


Generative AI programs are trained on massive human data sets. It’s the only way they are able to generate responses, images, sounds, and music. This source material is often material worthy of IP protection, so why are the companies able to train their programs using other people’s work?


People are inspired by the work of others every day. The same is true for AI programs. These programs are able to use protected works for inspiration and guidance but are not supposed to be reproducing or copying those protected works.


Some artists claim their work is being infringed upon because “signatures” occasionally show up on AI art. While the programs likely are simply attempting to reproduce what an artist’s finalized work looks like, the end result may indeed copy so many inherently distinctive elements of an artist’s work that it harms the artist’s ability to sell their work, an element that weighs heavily against a finding of fair use. We are keeping our eye on the cases in court now. A key issue is whether such copying of an artist’s style by AI is “fair use” or not.


AI Intellectual Property Questions Require the Careful Eye of an IP Attorney


At IP Works Law, we are a team of intellectual property professionals. Our team adapts our understanding of IP law as the law evolves. Artificial intelligence is just the latest in a long line of technological advancements that require us to apply these laws in new ways. If you need help protecting your intellectual property from AI programs or are using an AI program to produce what you believe is protectable work, contact our team to POWER YOUR IDEAS®.

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Since 1992, Catherine Cavella, Esq. Her focus on Trademark Law and Copyright Law for the last few decades gives her deep insights into the fundamental principles behind the rules. Catherine regularly writes about new developments in trademark law, copyright law, and internet law.