Independent Creation in a World of AI

22 Pages Posted: 12 Nov 2019 Last revised: 2 Mar 2020

See all articles by Clark D. Asay

Clark D. Asay

Brigham Young University - J. Reuben Clark Law School

Date Written: November 11, 2019


Scholars have long debated whether the outputs of AI systems should be subject to copyright. On the one hand, the automated nature of many AI systems may make copyright unnecessary as an incentive for the creation of those AI systems’ outputs, in which case society would be better off withholding copyright protections from them. On the other hand, those outputs often exhibit sufficient creativity to merit copyright protection, and without copyright, parties that use AI systems to create such outputs may lack the necessary incentives to do so.

In this Essay, prepared as part of the Florida International University Law Review's symposium on intelligent entertainment, I argue that copyright law’s independent creation defense, as well as the widespread availability of AI systems for helping authors in their creative efforts, help address some of the concerns embedded in these debates. Historically, the independent creation defense has rarely applied, simply because independent creation of similar expression is highly unusual. But as this Essay explores, AI increases the likelihood of multiple parties creating similar expression independently, meaning that the defense can help defuse worries that applying copyright to AI outputs will result in a copyright quagmire. Furthermore, the availability of AI systems for assisting authors in their creative efforts means that authors have tools for more readily creating unique works that avoid many of the remaining copyright landmines.

Other copyright issues linger, however, and the last part of this Essay examines some of these concerns in brief. In particular, parties may wish to use specific AI outputs in their own creative efforts, and neither the independent creation defense nor the availability of AI tools for creating something unique help address this problem. Copyright law’s fair use defense may, however, and the Essay concludes by briefly examining how.

Keywords: artificial intelligence, AI, machine learning, copyright, copyright infringement, intellectual property, independent creation

Suggested Citation

Asay, Clark D., Independent Creation in a World of AI (November 11, 2019). FIU Law Review (2020, Forthcoming), BYU Law Research Paper No. 20-04, Available at SSRN:

Clark D. Asay (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

540 JRCB
Brigham Young University
Provo, UT 84602
United States

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