Generative AI and IP Under US Law

Abstract

Generative AI promises to have a significant impact on intellectual property law and practice in the United States. Already several disputes have arisen that are likely to break new ground in determining what IP protects and what actions infringe. Generative AI is also likely to have a significant impact on the practice of searching for prior art, creating new materials, and policing rights. This chapter surveys the emerging law of generative AI and IP in the United States, sticking as close as possible to near-term developments and controversies. All of the major IP areas are covered, at least briefly, including copyrights, patents, trademarks, trade secrets, and rights of publicity.

In terms of protection, purely AI-generated works are uncopyrightable for the time being, whereas AI-assisted inventions can be patented. Other impacts of generative AI are more difficult to discern. Although copyright owners suing AI system providers face several hurdles, there may be potentially successful claims depending  on how often and how easily the system generates substantially similar outputs. AI-generated prior art has the potential to anticipate inventions or make them obvious, but more likely will lead to doctrinal changes concerning what constitutes prior art. Generative AI has the potential to affect both examination and enforcement for both patents and trademarks, with uncertain effects. Indeed, the use of generative AI systems to find and compare services and goods has the potential undermine the entire purpose of trademarks. Finally, the use of generative AI to create new works featuring existing artists and performers may lead to a surfeit of right of publicity claims. The next several years are likely to be transformational in the same way the rise of the Internet was in the late 1990s and early 2000s.

Keywords: artificial intelligence, generative AI, copyrights, patents, trademarks, trade secrets, right of publicity, intellectual property rights, infringement, United States law