AI Derivatives: the Application to the Derivative Work Right to Literary and Artistic Productions of AI Machines

31 Pages Posted: 8 Feb 2022 Last revised: 26 May 2022

See all articles by Daniel J. Gervais

Daniel J. Gervais

Vanderbilt University - Law School

Date Written: February 8, 2022

Abstract

This Article predicts that there will be attempts to use courts to try to broaden the derivative work right in litigation either to prevent the use of, or claim protection for, literary and artistic productions made by Artificial Intelligence (AI) machines. The Article considers the normative valence and the (significant) doctrinal pitfalls associated with such attempts. It also considers a possible legislative alternative, namely attempts to introduce a new sui generis right in AI productions. Finally, the Article explains how, whether such attempts succeed or not, the debate on rights (if any) in productions made by AI machines is distinct from the debate on text and data mining exceptions.

Keywords: derivative works, artificial intelligence, originality, circuit split

JEL Classification: K11, K20, L82, Z11

Suggested Citation

Gervais, Daniel J., AI Derivatives: the Application to the Derivative Work Right to Literary and Artistic Productions of AI Machines (February 8, 2022). Seton Hall Law Review, Vol. 53, 2022, Vanderbilt Law Research Paper No. 22-12, Available at SSRN: https://ssrn.com/abstract=4022665 or http://dx.doi.org/10.2139/ssrn.4022665

Daniel J. Gervais (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615 322 2615 (Phone)

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