AI image generators can produce stunning watercolors, paintings, photos, and pencil drawings. Text generators are equally adept in creating poems, essays, mimicking styles while taking creative license in producing content that strays from facts (Appel et al., 2023). Consequently, the courts are trying to sort out how intellectual property (IP) laws pertaining to creative content should be applied to generative AI works of art.

Fair Use Vs. Copyright

AI and IP issues are currently being considered by US courts. Legal aspects of AI and IP include ownership and attribution, patentability, data privacy, and liability; laws and regulations such as copyright law, patent laws, data protection laws and international agreements and global standards for IP, will inform these legal aspects (Abdallah & Sallah, 2023). Abdallah and Sallah (2023) point to four ethical considerations for AI developers: transparency and accountability, bias mitigation, data privacy, and education/ ethical considerations.

Appel et al. (2023) highlight a case in late 2022, Andersen v. Stability, which involved three artists who sued multiple generative AI platforms on the basis that AI used their original, licensed work to train AI in their specific form and style, resulting in unauthorized plagiaristic art . The legal system is asked to clarify  where the boundaries of plagiarism or “derivative works” have been crossed under IP laws. The question then becomes, does Fair Use allow copyrighted work to be used without the owner’s permission for the intent of news reporting, teaching, scholarship, or research? Additionally, can such copyrighted content be utilized in a way that was not intended by the original creator?

Licensing and Fair Compensation

We must also consider licensing that provides compensation to the original artist who owns the IP and from the developers seeking to add the content to train AI tools. Until definitive rulings provide greater clarity and standards on IP in creative content using AI, it may be useful to focus on guiding principles that support ethical and responsible uses of AI. Holmes and Miao’s (2023) UNESCO publication on Guidance for Generative AI in Education and Research states that, “While the emerging regulatory frameworks intend to require GenAI providers to recognize and protect the intellectual property of the owners of the content used by the model, it is becoming increasingly challenging to determine the ownership and originality of the overwhelming amount of generated works” (p. 36). The guide goes on to note “concerns about protecting the rights of creators and ensuring fair compensation for their intellectual contributions,” and how the lack of traceability “introduces challenges into educational contexts about how the output of GenAI tools may responsibly be used” (Holmes & Miao, 2023, p. 36).

Impact On Trademark Infringement

Trademarks are recognizable signs, symbols, designs, or expressions that distinguish products or services of a particular source from those of others. Trademarks can be a word, phrase, symbol, or design, or a combination of these elements. They are used to identify and distinguish goods or services in the marketplace and can become valuable assets for businesses. Trademark laws govern the registration, protection, and enforcement of trademarks, ensuring that consumers are not confused about the source of goods or services.