Copyright: Ensure Human Input or Risk Losing Protections

The worlds of AI and copyright intersect on a number of levels. Most often, we write about this intersection in the context of infringement. This occurs when a copyright holder’s materials are used in AI training or appear in AI outputs. However, there’s another important consideration on the opposite side of the coin. AI outputs are not themselves copyrightable. Meaning that any IP produced using an AI system is fair game for competitors, copycats, and the public at large. A recent Venable memo gets in the weeds on when AI work can and can’t be copywritten:

“The U.S. Copyright Office has long held that copyrights are available only to works created by humans. AI-generated works are created by computers and algorithms, not humans. Therefore, the end product of AI-generated works is not protected by copyright and is free for anyone to copy and use as they wish. This position has been challenged in court, up to the Supreme Court, but to date it has been upheld by the courts. The courts have also long held that time and money spent (“sweat of the brow ” is the legal term of art they use), no matter how extensive, do not get you copyright protection. The work must be sufficiently original and created by a human.”

However, this isn’t to say that any amount of AI use makes a work ineligible for copyright. The memo goes on to explain how a work can contain copyright-eligible elements, even if portions are AI-generated.

“All is not lost, however, if there is human input integrated into the AI-generated material. That input can be protected. When one creates an AI-generated work and then has human input added to it, or modifying it, those human contributions can be protected by copyright (if sufficiently original and substantial). Adding human contributions does not, however, create any copyright in the underlying AI material.”

Companies should consider how this might impact marketing and branding. Assume you’ve got a great new logo. If that logo was AI-generated, it may be ineligible for protection. Similarly, commercials, print advertisements, and even product designs generated by AI are fair game for the public. If you’re using generative AI in marketing or R&D, consider these risks. Always ensure that the core elements requiring legal protection are manmade and added by humans to any generic basis you may create through AI.