Artificial Intelligence brings up legal concerns in copyright, trademark law

Businesses are increasingly using Artificial Intelligence for work ranging from highlighting meeting notes to creating sales materials. 

But there are many instances when a business should be exercising caution in using AI, specifically if they’re looking to copyright or trademark something they created using AI tools. 

Elyse Pillitteri, an attorney and shareholder at Fitzpatrick Lentz and Bubba in Allentown, said there’s reason for concern. 

“That area of the law is still developing. There isn’t going to be a bright line,” Pillitteri said. 

Because there are so many gray areas when it comes to AI generated content, she said consulting an attorney familiar with intellectual property laws is a good idea. 

“As AI continues to emerge as a prominent tool in society, it is important to ensure that any AI-generated output for your business is legally safeguarded.” Pillitteri said. 

She explained that a copyright allows an owner of original works to engage in many exclusive rights, such as reproducing, displaying, and distributing the work, for example a business’ logo. 

However, a copyright has a human authorship requirement, she said. 

That means that the work needs to be principally conceived, produced, and executed by a human and not AI.  

“However, AI may aid in developing a creative work if it does not automatically produce an output with minimal human prompting,” Pillitteri said.  

She said the use of AI in creative works tests the human authorship requirement of copyright law, and most decisions on whether a work can be copyrighted would be made on a case-by-case by measuring how the AI tool was used in creating the final product. 

She said the U.S. Copyright office has given guidance on what qualifies as human authorship. 

To qualify, the end product must come from the collecting and arranging of AI images or words in a unique sequence that the author determines. 

There also must be substantial modification of AI-generated artwork.  

What does not qualify as human authorship? 

If a user is prompting an AI platform to create an artistic work where the technology primarily determines the design or asking an AI technology to revise a pre-generated output would not qualify. 

Pillitteri said Trademarks, while different, can have similar pitfalls when it comes to using AI. 

Trademark laws protect words, phrases, logos, and devices that are applied to identify goods or services used by a person in their business endeavors.  

Currently, she said trademark law is developing as it pertains to generative AI. 

Unlike copyright law, trademarks do not have a human authorship requirement, so Pillitteri said some business owners may think it is easier to have an AI-generated output protected by a trademark rather than a copyright.  

However, she said there are other concerns including the distinctiveness requirement which says that trademarked material must be distinctive, meaning it must function as a source identifier rather than a generic or descriptive term for the goods or services. 

 “The distinctiveness requirement may be more challenging to meet when using generative AI because the average generative AI tool pulls its ‘inspiration’ for logos and other projects from large datasets,” Pillitteri said. 

Since generative AI does not necessarily produce truly unique outputs in response to a prompt, it would usually take a human’s input to meet the threshold. 

“Though trademark law does not explicitly prohibit the use of AI in materials that qualify for protection, it is important to keep the risk of future trademark infringement lawsuits in mind when using generative AI for your business,” Pillitteri said.  

She said that since AI uses similar, potentially trademarked, images or phrases based on pre-existing material on the internet, it may expose business owners to lawsuits from the AI content they use.   

Pillitteri said it is always important to always conduct a comprehensive trademark clearance search to lessen the risk of any potential lawsuit, and an experienced attorney can help, she said.