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As digital technology and the online environment transform the distribution and use of intellectual property, our Copyright & Trademark group is on the front lines in protecting and enforcing our clients’ most important creative assets. Our trial-tested team represents a wide range of clients, from entrepreneurs to major corporations, from playwrights to media giants, and from individual songwriters to the country’s largest performing rights organizations.

Intellectual Property Litigation: AI-Generated Artwork and Copyright Ownership

November 8, 2023

Litigation partners Catherine Nyarady and Crystal Parker’s latest intellectual property litigation column, “AI-Generated Artwork and Copyright Ownership,” appeared in the November 8 issue of the New York Law Journal. The authors discuss Thaler v. Perlmutter, in which the U.S. District Court for the District of Columbia affirmed the Copyright Office’s denial of copyright registration for artwork created by a generative artificial intelligence system, because the artwork at issue did not satisfy the Copyright Act’s “human authorship” requirements. The Act protects “original works of authorship fixed in any tangible medium of expression … by or under the authority of the author.” Though it does not explicitly define the term “author,” the court noted that the concept of human authorship stems from “centu­ries of settled understanding.” However, the court was limited to the administrative record before it, and therefore could not consider the plaintiff’s statements, raised on summary judgment, that he “provided instructions and directed” the generative AI to produce the artwork, and that the generative AI was “entirely controlled” by him and operated at his direction. Future registration applications and challenges along these lines could be forthcoming. Litigation associate Scott Caravello assisted in the preparation of this column.

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