“So long as the activity taken by the AI system can be fairly characterized as synthesis rather than innovation, it should be permissible to use such a system in creating content that can thereafter be protected by copyright, trademark or patent.”
Current artificial intelligence (AI) systems can generate an astonishing variety of content, including text-based works, audio, video, images, programming code, product designs, technical papers, etc. In many cases, the output from an AI system is virtually indistinguishable from that of a human. This trend is expected to continue at an ever-increasing rate in the coming years.
Since content solely generated by an AI system is not available for protection under existing intellectual property laws, the following are practical guidelines for human creators who wish to protect content that was created with the assistance of an AI system.
A first recommendation for human creators is to thoroughly document their own contributions, as well as those of the AI system, during the creation process. The type of documentation will vary based on the type of content that is generated, as well as by the process used to generate that content. Such documentation may be critical to obtaining valuable protection under current U.S. copyright, trademark and patent laws.
Distinguishing Innovation from Synthesis
A second recommendation for human creators relates to demonstrating that the AI system was merely used for synthesis, not innovation, in arriving at the AI-assisted content. Innovation and synthesis are two different concepts that are often used interchangeably, but they have different meanings in the context of intellectual property law.
Innovation generally refers to the process of creating something new or improving upon an existing idea or product. It requires human creativity and involves a sufficient degree of originality and inventiveness. Synthesis, on the other hand, generally refers to the process of combining existing elements to create something new. Synthesis can be performed by both humans and AI systems, but does not tend to require the same level of originality or creativity as innovation.
This distinction between synthesis and innovation can be expressed as the difference between an idea and a particular expression of that idea in the area of copyright law, or the difference between an aggregation and a novel combination in the area of patent law.
Copyrights for Creators Using AI
Regarding copyrights, it is well established that United States Copyright Law (Title 17 U.S.C.) covers original works of authorship created by a human being. While only a small amount of originality and creativity is necessary, the work must come from a human.
To this end, the recently published guidelines from the U.S. Copyright Office require human authors to indicate, in the copyright registration application form, which elements were created by a human and which were created by an AI system. See Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, Federal Register 2023-05321, 3/16/23. The Copyright Office will consider the extent to which the AI contributions were utilized on a case-by-case basis to determine whether the human-supplied component is sufficient to warrant copyright protection.
Creators who wish to obtain copyright protection for an AI-assisted work should maintain detailed records and other evidence that demonstrate the extent to which the AI system contributed to the final work. The greater the amount of human input in the process, the better.
There are several ways in which a human can use an AI system to create a final work, including at the input data stage, through modifications to the AI generation process, and through adjustments or modifications of an AI generated output through post-curation processing. Maintaining copies of the input data supplied to the AI system, adjustments made to the system, and the basic unaltered versions of content generated by the AI system can be invaluable in allowing the human author to demonstrate the creative components they supplied to the final work.
Trademarks for Creators Using AI
In the area of trademarks, which covers both U.S. federal and state level registrations, the actual process that was used to generate a particular mark is less important. The trademark rights that a party has to a particular mark is based on the extent to which the party has used the mark to identify the source of the goods or services provided under the mark (e.g., used the mark as a trademark), as well as the extent to which the mark does not infringe the rights held by another party. Whether the mark is created by a human, by an AI-system, or by a collaboration of both is largely immaterial to this determination.
Nonetheless, it is advisable to fully document the use of AI systems in the generation, use and clearance searching of a particular mark to ensure the party using the mark has the right to adopt and use the mark. If an AI system is used to create a trademark, it is important to ensure that the AI system did not inadvertently generate a mark that is confusingly similar to these other marks. Using training data that included competitors’ marks, for example, could be highly damaging in a subsequent trademark infringement dispute involving an AI-generated mark.
Patents, AI and Product Development
Finally, when it comes to patents, the U.S. Patent and Trademark Office has made it clear that an AI system cannot be an inventor. It is therefore advisable under the existing U.S. patent laws (Title 35 U.S.C.) to limit the extent to which AI is used to develop new products from either a utility or design patent standpoint. To the extent that an AI system is utilized in the preparation of a patent application, such as by assisting in the generation of an ornamental design or the drafting of a claim, all such usages should be thoroughly documented in case a challenge to the validity of the resulting patent is subsequently made. There should be sufficient documented evidence that the extent to which the AI system aided in the product development process was merely synthesis, not innovation.
In sum, so long as the activity taken by the AI system can be fairly characterized as synthesis rather than innovation, it should be permissible to use such a system in creating content that can thereafter be protected by copyright, trademark or patent. Thoroughly documenting the contributions made by both the human and AI team members is essential to ensuring the maximum amount of protection can be obtained.
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