How AI affects copyright and trademark ownership
Artificial intelligence (AI) is revolutionizing business. Businesses are using tools like ChatGPT, Bing AI, and Midjourney to write blog posts, complete research, generate social media images, and enhance customer experience. Popular services like Canva and SnapChat are also incorporating AI into their offerings.
AI tools can save your business tons of time. Before using AI, however, it's crucial for businesses to understand the implications of using AI on copyright and trademark ownership.
Copyright protects original works of authorship from being copied or reused without the creator’s permission. Common works that creators can protect under copyright law include:
· Software code;
· Musical compositions;
· Book; and
· Graphic designs
But what happens if the author uses AI to create a work? The U.S. Copyright Office recently issued a Statement of Policy outlining its practices for considering works generated using AI for copyright registration. It emphasized that anything generated solely by AI can’t be copyrighted, as copyright law only protects human-authored works.
However, if a human contributes to the expressive elements of a work (for example, the rhythm, words, and structure of a poem), traditional copyright protection can apply even if AI assisted the author in creating the work. In these situations, the Copyright Office will use a case-by-case approach to determine whether works created with the help of AI can be registered. Accordingly, creators should document the AI's role in the creation process and highlight the human author's contributions in their applications for copyright protection.
Rather than protecting creative expressions, trademark law protects unique identifiers used to sell goods and services, such as:
· Brand names;
· Taglines; and
Read up on the difference between copyrights and trademarks here. Trademark rights are based on the extent to which a mark is used to identify the source of the goods or services. Whether a human, AI technology, or a combination of both creates the mark is largely immaterial to this determination. A significant risk when using AI to create trademarks, however, is that the marks AI generates may infringe on someone else’s rights. AI relies on pre-existing information, so there’s a chance it will use information from a competitor’s marketing materials to create your new tagline. Additionally, AI-generated marks might lack creativity and uniqueness, making them too generic for trademark protection.
AI services also don’t promise that content created using their services won’t infringe on anyone else’s rights. OpenAI, for example, gives users ownership of all user-generated content, but reminds users that AI may generate the same or similar output for various users. Both Canva and OpenAI disclaim any warranty that its services do not infringe on anyone else’s rights and may require users to indemnify them for any costs that they may incur for third-party infringement claims. So if an artist were to sue Canva for copyright infringement claiming that an image you generated for your social media using its service infringes on their copyright, Canva could make you pay their legal fees and defense costs in addition to your own costs and fees.
While generative AI-technology can create efficiencies and opportunities in your business, using it is not without risk. As with any new tool, businesses should be careful about how they use AI. By staying informed about copyright regulations, conducting thorough IP clearance searches, and leveraging human ingenuity alongside AI capabilities, businesses can benefit from AI while avoiding legal pitfalls.
Remember – while AI is a powerful tool, it can’t replace the human element that makes your business special.