The use of generative AI tools is raising a host of unprecedented intellectual property issues. For example, if you use an AI tool to create a new invention, literary work or visual image, do traditional patent and/or copyright protections apply to the resultant work? Do AI tools themselves infringe on intellectual property, given that their large language models depend on ingesting gigantic databases of human-authored content? Could an ASCAP-like model be developed to fractionally reward human authors for their contributions to such models?
Jeanette Braun, Esq. is the founder of Braun IP Law, LLC, an Illinois-based law firm specializing in intellectual property. She’s got deep experience in IP law, so I thought she’d be the perfect person to reach out to for a discussion about the intersection of AI and IP.
“The law hasn’t caught up,” she notes. “We do have the “Monkee Selfie” case, which blew up all over the internet a few years ago — this is where a Monkee took a picture of himself, and the Monkee actually clicked the camera to take the picture of himself smiling, and there was a big lawsuit over that, trying to determine who owned the copyright to that picture, because the Monkee took it. And the courts determined that no one owns the copyright to the picture because only humans can own copyrights, and that’s the same with patents. So it’s going to be, I think, right now, a sliding scale. (Determining the degree of copyrightability of works co-created with AI) will depend on how much the human inputted into the system, as to whether they can check that box and say ‘yes, I authored that work; I created that idea’ in order to register it.”
On the other hand, Jeanette observes “there’s no problem with AI-generated trademarks. Trademarks and copyrights are different. For a copyright to apply, it has to be a human creating a work of authorship. For trademark rights to apply, it just has to be operating as a brand.”
Our conversation turns to a more general discussion of IP protections and the mistakes that business owners often make with respect to them. As Jeanette notes, “one of the fastest ways to be put out of business is to step on someone else’s intellectual property rights,” and this often happens because business owners fail to conduct basic searches and other proper due diligence before registering their marks.
We explore various aspects of IP law, including wordmark and logo protection and provisional patents, and conclude with a discussion of tips for business owners who either think their IP rights have been infringed or seek to protect their own original works from infringement by others.