Copyright law is key to the development of generative AI. Resolving tensions removes roadblocks for industry development

In thinking about the requirements of “human origination” under the copyright and patent laws, the core questions are: (1) did a human being originate any or all of the subject matter? and (2) if a human being did not originate every aspect of the subject matter, what portion comprises the “human contribution?” The use of AI to achieve or assist in generating the result(s) for which copyright or patent protection are sought, raises a number of considerations that invoke or seek to circumvent those questions. Moreover, there are a number of stages in AI processes or AI- assisted processes in which the “spark” of human creativity may be evident. For example, a non- exhaustive list of points of potential authorship or inventorship can include: (1) the corporation or other entity (if any) that commissioned the development of the AI technology, such as the algorithm(s); (2) the creator(s) of the AI technology, such as the algorithm(s); (3) the individual(s) who coded the system; (4) the individual(s) who defined the goals, biases, or training materials employed in the AI system; (5) the individual(s) who intervened in the particular AI process or task to affect the result; or (6) the individual(s) who took a product of the AI process and modified it or added content to it that expresses at least a modicum of post-AI originality.13 Of course, this latter scenario – the addition of a “human element” to the AI end product – fits very comfortably in traditional notions of authorship and inventorship.14 Authors frequently “borrow” from, or find inspiration in, pre-existing materials and inventors often improve upon or find new uses for items or processes that already exist. In the realm of copyright the process is demonstrated by Andy Warhol’s spectacularly successful modifications of prior third-party works to create new ones.15 This is a staple technique in numerous artforms, although very few practitioners would adopt Warhol’s explanation – “I want to be a machine” – for the use of depersonalizing commonality and repetition in the artistic process.”16 The key, however, is that there are a number of competing interests that underlie the creation of AI systems, their employment, and their products. No matter the result, however, it is clear that intellectual property laws (and contract law applicable to, e.g., transfers and licenses) will play robust parts in the development of the industry and the commercialization of its products. II. U.S. Copyright and AI As the use of AI systems in the creation of expressive works continues to grow in terms of applications and economic consequences, it was inevitable that the core issues of AI and human creativity would surface in the context of the U.S. copyright registration process.17 This section of the discussion will focus on “the frontline” territory of the copyright registration process – a process that, in most cases, is the prerequisite to enforcement of a copyright claim.18 Also a selection of relevant U.S. judicial decisions and other considerations will be discussed.