The recent proliferation of useful Artificial Intelligence (“AI”) tools for tasks like text, image, music, and software code generation is all the rage. In the intellectual property sphere, one of the hottest topics surrounding the use of these AI tools is whether the works of art or inventions (including works of industrial design) created using these tools can still be considered the creation of the individual author or designer. This question is of critical importance because the U.S. copyright and patent laws are currently written in a way that require human creation to be eligible for protection.

In this author’s opinion, unless Congress steps in and amends the IP laws to allow for the blanket protectability of AI-created works—which seems highly doubtful—the courts will have to carefully craft eligibility tests for when the use of AI tools crosses some threshold beyond which the creation of a work or invention seems too disconnected from the input provided by a human to be eligible for protection.

Since U.S. copyright law can never protect a concept or idea, and only ever protects a specific expression of an idea, it seems impossible that the artistic output of, for example, a ChatGPT prompt along the lines of “create a poem about a boy and his dog” would ever be deemed protectable under U.S. copyright law.  On the other hand, there likely are input prompts detailed enough such that the output created by such an AI tool would still legally be considered the creation of the human author of the input.  After all, musicians, photographers, and countless other types of artists have used software tools for decades to modify their works, without any meaningful question arising about whether they remain the creator of the finished work.

The picture in trademark law is different, however, since it is the source identification function that ties a symbol such as a logo or design mark to a particular party’s good or services—not how such a symbol was initially created—that is legally important.  Thus, there appear to be little-to-no hurdles for the protection of AI-created works as trademarks (beyond the threshold one of determining and resolving whether someone else might initially hold a copyright in the artwork that constitutes such a logo or design mark).