USA: An Intellectual Property: Trademark, Copyright & Trade Secrets Overview

Meet the New Boss, Same as the Old Boss: Advising on AI on Day-to-Day Trademark and Copyright Claims

Intellectual property law today is dominated by questions around artificial intelligence. “Is it legal to use lawfully purchased copyrighted works to train large language models?” (Probably yes.) “What about works my company did not pay for?” (Definitely no.) But as these industry-defining questions are being answered through litigation between content owners and major AI software companies, clients who develop, use and exploit content in the ordinary course of their businesses encounter more prosaic questions about use of AI-generated content on a daily basis and have only existing law to look to for answers.

The good news is that existing copyright and trademark law continues to provide a framework to allow lawyers to provide real answers to the day-to-day questions clients bring to their outside counsel. For example, the bedrock principle of copyright law that, in order to be protectable, content must be an original work of authorship, holds firm, meaning that no AI-generated content can, in and of itself, be the basis of a copyright infringement claim. On the other hand, under existing theories of contributory or vicarious infringement, a human role in the creative process, even aided by generative AI, can lead to liability even if the defendant did not themselves create the infringing work. Similarly, potential defendants cannot escape trademark liability if they use generative AI to create promotional or marketing materials that create a likelihood of confusion in the marketplace.

In other words, as the business world works its way through yet another wave of the challenges presented with every old-law-versus-new-media battle, the ability of intellectual property rights-holders to enforce against infringers has remained steady amid the rapid development of AI technology and capabilities, providing continued certainty and guidance to potential plaintiffs and defendants alike as they evaluate clearance and claims going forward.