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Artificial Intelligence is Testing the Limits of Intellectual Property Law. Here’s How.


Establishing Ownership of AI-Created IP

Existing laws that govern intellectual property (“IP”) were written when inventions and artwork were only created by human beings. Now, because artificial intelligence ("AI") can create graphic art, prose, and even inventions, the law is trying to catch up.


Challenging the status quo, on a global basis, is physicist Stephen Thaler. He’s been filing patent applications for inventions created by his AI system “DABUS” (an acronym for “Device for the Autonomous Bootstrapping of Unified Sentience”). Most of Thaler’s patent applications have been rejected because most patent law statutes expressly require that the inventor be an individual. He’s had one success in South Africa but has been thwarted in the U.S., the U.K., and Australia.



“A Recent Entrance to Paradise”

However, Thaler has better odds at getting a copyright registration in artwork created by DABUS. The U.S. Copyright Office refused to grant registration in his DABUS-generated picture entitled “A Recent Entrance to Paradise”. (image at right)


Thaler is suing in federal court to overturn this refusal. He argues that human creation is not a requirement for copyright registration. Corporations, he argues, are routinely recognized as the “author” of a work, and they successfully register those works.

His suit will not be a slam-dunk, however, as some case-law weighs against him: a federal appeals court previously ruled that copyrightable works must be created by a human. That court refused to grant a registration in a selfie photo taken by a monkey (see picture below), partly on the grounds that the monkey would lack legal standing to bring a copyright infringement claim.

Criticisms that AI Exploits Human-Created Work

Some artists and rights-holders feel that AI is making unfair use of their existing artwork in the creation of the AI-generated art.


Getty Images recently commenced legal action in London against Stability AI, claiming that it infringed Getty’s intellectual property rights by unlawfully copying and processing millions of copyright-protected images for “the benefit of Stability AI’s commercial interests and to the detriment of the content creators.” Getty wants Stability AI to pay for a license to use Getty’s works. The case is on-going.


Here in the U.S., three California artists are suing Stability AI on similar grounds. They claim that Stable Diffusion (Stability AI’s engine) uses works it scraped from the internet without the artist’s consent. The images that Stable Diffusion creates, the plaintiffs argue, constitute derivative works of the artists’ original artwork. (Making an unauthorized derivative work is a form of copyright infringement.) The plaintiffs assert that Stable Diffusion’s creations—while “seemingly new”—are, in reality, merely derivative works created by the AI’s “mathematical software process”.


AI as a Novel Artistic Medium

Some artists, however, don’t see AI as a threat, and are embracing it as a new and powerful medium. Artist Alexander Reben (an MIT-trained roboticist) views AI as a means for artists to amplify their artistic mind—similar, says Reben, to the way wielding a wrench amplifies a workman’s physical ability. (See the BBC piece here for some fascinating works Reben created with AI.)


More Questions Than Answers

Artificial Intelligence appears likely to grow exponentially, and profoundly affect humankind. At the moment, though, AI is raising more ethical and legal questions than it's answering. But maybe not for long: AI may soon be answering those same questions that it's raising. AI is already arguing parking tickets (see here), and AI is passing MBA and law school exams! (see here and here)


Disclaimer: the foregoing is for informational purposes only and should not be considered legal advice. The content is provided as-is and no representation is made that it is error-free. Readers should contact a licensed attorney to obtain advice with respect to their specific legal matter.

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