As artificial intelligence (AI) continues to advance, California businesses and employer defense attorneys are increasingly confronted with complex legal questions surrounding using and protecting AI-generated works. A recent blog post by the law firm Lerner and Weiss explores the challenges of applying existing copyright law to these novel creations, highlighting key considerations for companies and legal professionals operating in California.
The U.S. Copyright Office has traditionally held that only “original works of authorship” created by humans are eligible for copyright protection. As the blog post explains, “The U.S. Copyright Office position is that the Copyright Act provisions governing a copyright’s lifecycle— including its creation, conveyance, duration, and renewal—show that a human must be involved in authoring the work.”
This stance is supported by various provisions of the Copyright Act that assume human authorship. For instance, the Act’s treatment of copyright transfers and licenses requires a written agreement “signed by the owner of the rights conveyed or such owner’s duly authorized agent” – a requirement that a machine cannot meet. Similarly, provisions related to termination rights and copyright duration reference the author’s life and death, further reinforcing the presumption of human authorship.
U.S. Supreme Court case law has also stressed the importance of human involvement in creating copyrightable works. In a landmark case extending copyright protection to photographs, the Court found that “To warrant copyright protection, the Court concluded photographs must be ‘representatives of original intellectual conceptions of the author.'” The photographer’s creative choices and control over the work were crucial factors in the Court’s decision.
While AI technologies can be viewed as creative tools similar to cameras or other devices, the blog post contends that “just as the user (or manufacturer) of the camera used by the photographer could not have claimed the camera itself as the ‘author’ of any photograph captured with it, one cannot claim his machine or computer, using AI, as the ‘author’ of any image ‘autonomously’ generated by it.”
The question of authorship becomes even more complex when considering who might be entitled to copyright protection for an AI-generated work if such protection were available. Would it be the AI technology developer, the device’s owner running the AI program, or the individual inputting parameters and directing the AI’s output? Each could potentially stake a claim, further complicating the legal landscape for California businesses and employer defense attorneys.
As companies and individuals in California navigate this uncertain terrain, it is crucial to stay informed about evolving laws and regulations related to AI and intellectual property. A recent Bloomberg Law event, the 2024 In-House Forum, underscored the need for organizations to closely monitor the developing privacy landscape while evaluating new technologies and consumer data policies. As the event overview noted, “Mega privacy fines against companies, new privacy laws and frameworks in various countries, challenges around AI and machine learning applications – the last few years have shaken the world of consumer privacy considerably.”
The lack of clear guidance and the potential for significant financial and legal repercussions highlight the importance of seeking expert advice when dealing with AI-generated works and intellectual property in California. Lerner and Weiss, with their deep understanding of copyright law and its application to emerging technologies, are well-equipped to help California businesses navigate this complex landscape.
As the blog post concludes, “As with all technological advances, governments lag in revising existing and developing new legislation and rules to address innovative technology.” Until new laws or guidance emerge, it is essential for those creating, using, or investing in AI-generated works in California to consult with experienced legal professionals like the team at Lerner and Weiss. Their expertise can help mitigate risks, protect valuable intellectual property, and ensure compliance with current and future regulations.
In an era of rapid technological change and evolving legal frameworks, proactive engagement with knowledgeable legal counsel is not merely prudent but necessary. By staying informed and working closely with firms like Lerner and Weiss, California businesses and employer defense attorneys can confidently navigate the uncharted waters of AI-generated works and copyright law, positioning themselves for success in an increasingly AI-driven world.