Copyright and AI: Controlling Rights and Managing Risk

The relevance of copyright law to the future of artificial intelligence (AI) can hardly be overstated. Whether the foundational practice of training large language models infringes or is fair use; whether output from AI can be registered and protected; whether AI output infringes copyright, misappropriates name, image, and/or likeness rights, or is fair use—these are all issues that will impact content creators, content users, and AI service providers around the world. Morgan Lewis partners Ron Dreben and Meaghan Kent discussed copyright law and current AI litigations that may influence creative industries, technology companies, and society at large for years to come.

Key Takeaways

• Copyright law is relevant to AI training inputs and outputs.
• Human authorship is generally a prerequisite to copyright registration and enforcement in the United States.
• The number or sophistication of “prompts” currently is not considered authorship in the United States, so AI outputs (like software generation) may not be enforceable.
• Copyright owners in various types of content have made claims that AI training and AI outputs constitute direct, contributory, and vicarious copyright infringement, as well as violations of the Digital Millennium Copyright Act (copyright management information protections), among other claims.
• Thus far, direct claims of infringement are doing best in surviving motions to dismiss.
• To what degree use of copyrightable materials for AI training may constitute “fair use” in the United States is yet to be determined, but the fact that AI technology is “transformative” in and of itself may not be enough to support a finding of fair use.
• China, the European Union, and other geographic territories are reaching decisions and enacting laws to address these issues, and there are nuances among countries.
• It is important to have an AI use policy and to revisit it frequently.

QUESTIONS?

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