A few days ago, The Wall Street Journal reported on its readers’ views on copyright and other legal issues related to artificial intelligence (AI).  Many answers appear to disagree with the current state of the law in the U.S.  Currently, the law only protects human authorship (for copyright protected works) and human inventorship (for patentable technologies).  While opinions on AI policy may differ, the law on whether AI-generated content is protectable is clear: the output of generative AI by itself is generally not protectable.

Many of The Wall Street Journal readers state that output of the AI should be owned by the person who entered the prompts and deployed the software.  Some readers used analogies to explain that ownership of the tools used to create the work or the fact that tools were used to create the work should not negate the ownership of the output.  One reader noted, “the owner of the ‘David’ sculpture is not the guy who made the chisel and hammer,” implying that the AI user should be the owner of the output.  That analogy might be flawed because AI is far more sophisticated than a chisel and a hammer.  Some readers even called for a replacement of copyright law all together.  That might require an amendment to the U.S. Constitution.

All said, those who use AI to create artistic works can protect the aspects of the work that are created by humans.  Authors who use AI can seek copyright registration of the selection, coordination, and arrangement of the AI-generated content.

The situation is much the same for U.S. patent law.  Only humans can be considered inventors.  Human inventors have already been awarded numerous patents for a wide variety of AI technologies and those awards will continue.  However, innovations that are generated by AI itself are not protectable.  Overall, AI users should look carefully at the AI tools they are using and the creations and innovations that result.  Legal protection could be available for some of the development that occurs.

The court of common opinion is not supposed to change the rulings of judges and certainly should not change the law unless and until Congress acts or the Constitution is amended.  However, the fact that AI is being widely adopted could impact some legal issues.  The law is not settled with respect to a number of issues, including copyright “fair use” related to AI training.  Courts might be influenced by the fact that their decisions could impact AI use that is already occurring.