Ethical Rules for Using Generative AI in Your Practice | Potential Copyright (and Patent) Issues
September 24, 2024
Steve Herman is special counsel in Fishman Haygood’s Litigation Section. He has served on the American Association for Justice (AAJ) Board of Governors since 2014 and currently serves as Chair of the AAJ’s AI Task Force. He also serves on the standing Louisiana State Bar Association (LSBA) Rules of Professional Conduct Committee and has given numerous presentations on the use of AI in the legal profession. In this biweekly series, he identifies ethical rules for generative AI usage in law practice. Click here to read his previous analysis of ABA Model Rule 1.6: Confidentiality.
At the risk of stating the obvious, we are still in the early days of what we believe to be an “AI Revolution” in the way that goods and services, including legal services, are and will be provided. Which means that we do not, at this point, have much in the way of formal guidance.*
With that preface, in this series we will examine some of the Professional Rules[i] and other legal requirements that could potentially be implicated by a law firm’s use (or non-use) of ChatGPT or other Generative AI (GAI). In our previous post, we covered serious concerns over confidentiality when it comes to using GAI in legal practice. Read on to learn about some of the questions raised around copyright and patent issues.
Potential Copyright (and Patent) Issues
Can the AI-generated material be copyrighted (and/or patented) by either the user or the owner and operator of the AI? What happens if the AI-generated material includes content that is subject to an underlying copyright claim? Is there some other common law or contractual property right in favor of either the owner or the user of the AI?
The U.S. Copyright Office will not register a work if “the traditional elements of authorship were produced by a machine.” For a work containing AI-generated material to be considered eligible for copyright, it must contain sufficient human authorship to support a copyright claim. Concerning AI-generated material, what constitutes sufficient human authorship varies. For example, according to the Office, “When an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the ‘traditional elements of authorship’ are determined and executed by the technology—not the human user.” However, a work containing AI-generated material will contain sufficient human authorship if the AI material is selected, arranged, or modified “to such a degree that the modifications meet the standard for copyright protection.” In such cases, the parts that will be protected are the “human-authored aspects of the work, which are ‘independent’ and do ‘not effect’ the copyright status of the AI-generated material itself.” [ii]
In August of 2023, the D.C. District Court rejected a copyright claim by an AI owner and operator over a visual work of art autonomously generated by his machine. The court noted that the “increased attenuation of human creativity from the actual generation of the final work will prompt challenging questions regarding how much human input is necessary to qualify the user of an AI system as an ‘author’ of a generated work, the scope of the protection obtained over the resultant image, how to assess the originality of AI-generated works where the systems may have been trained on unknown pre-existing works, how copyright might best be used to incentivize creative works involving AI, and more.” [iii] The Federal Court of Appeals held that an AI software system cannot be an “inventor” for purposes of obtaining a patent under the Patent Act. [iv]
According to OpenAI’s Terms of Use: “As between the parties and to the extent permitted by applicable law, you own all Input. Subject to your compliance with these Terms, OpenAI hereby assigns to you all its right, title, and interest in and to Output.” However, the Terms also expressly prohibit a user’s attempt to “represent that output from the Services was human-generated when it is not.” [v]
Next time, Herman reviews Model Rule 1.5, which addresses fees, and “Black Box” concerns.
*On July 29, 2024, the ABA issued formal guidance for the use of GAI. Like much of the previous guidance and commentary, the ABA focused on (i) Competence, (ii) Confidentiality, (iii) Communication with Clients regarding the Use of AI, (iv) Candor Toward the Tribunal, (v) Supervisory Responsibilities, and (vi) the Reasonableness of Fees. Read more here.
[i] ABA Model Rules of Professional Conduct
[ii] U.S. Copyright Office, Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Federal Register 16190-16194 (March 16, 2023)
[iii] Thaler v. Perlmutter, No.22-1564, 2023 WL 5333236, 2023 U.S.Dist.LEXIS 145823 (D.D.C. Aug. 18, 2023)
[iv] Thaler v. Vidal, 43 F.4th 1207 (Fed. Cir. 2023)