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Exploring Generative AI’s Impact on Intellectual Property
Artificial Intelligence (AI) is rapidly reaching into nearly all areas of everyday life, quickly becoming some of the most exciting new tools for creativity. These tools, known as Generative AI (GenAI), advance innovation and efficiency by producing images, text, video, audio, and other forms of content. For some, GenAI is the latest and greatest innovation, while for others, it is an existential threat. In this emerging technological landscape, there are many implications and unanswered questions regarding the protection of intellectual property rights. This article highlights some of the challenges GenAI presents, and recent developments in copyright law and trademark law in this quickly evolving space.
Copyright Law Implications for GenAI
Copyright law protects an author’s exclusive right to exploit their original works through reproduction, preparation of derivative works, distribution, public performance and public display. See, 17 U.S.C. §106. As can be seen from recent headlines, copyright law is implicated by GenAI in at least three ways: 1) the use of copyrighted works to train AI models; 2) the risk that a specific AI-generated work infringes a prior copyrighted work; and 3) the protection of AI-generated works under copyright law.
Using Copyrighted Works to Train AI
GenAI platforms are powered by large amounts of content inputted into a training system, with the goal of teaching the AI model to produce outputs that mimic the outputs humans would create based on similar prompts. To train these platforms, the content must come from somewhere, and often that content is subject to copyright protection. In December of 2023, the New York Times Company (The Times) filed a complaint in the Southern District of New York against OpenAI, Inc.and Microsoft Corporation (the developers of ChatGPT and Microsoft Copilot, respectively). The Times alleged that the defendants’ GenAI tools copied and used millions of The Times’ copyrighted journalistic content to train their platforms without permission, and to compete against The Times in the journalistic market. Complaint filed with Jury Demand, The New York Times Company v. Microsoft, Corporation, OpenAI, Inc. et al., No. 1:23-CV-11195, Dkt. No. 1 (S.D.N.Y.Dec. 27, 2023). Just a few months prior, a putative class action complaint was filed against OpenAI in the Northern District of California alleging copyright infringement as to works authored by a class of authors without the authors’ consent to train ChatGPT. See, Class Action Complaint, Tremblay et al v. OpenAI, Inc. et al, No. 3:23-CV-03223, Dkt. No. 1 (N.D.Cal. June 28, 2023). The complaint was later amended and consolidated in March of 2024, and now names as plaintiffs Paul Tremblay, Sarah Silverman, Ta-Nehisi Coates, and others. See, First Consolidated Amended Complaint, Tremblay et al v. OpenAI, Inc. et al, No. 3:23-CV-03223, Dkt. No. 120 (N.D.Cal. March 13, 2024).
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