News media headlines are trumpeting that the Executive Order preempts state AI laws. This is not true. It directs this administration to try to strike down some state AI laws. It contemplates working with Congress to formulate and enact preemptive legislation. It is doubtful that a President could constitutionally preempt state laws by executive order.
On December 11, 2025, President Trump issued another Executive Order. This one is intended to promote “national dominance” in “a race with adversaries for supremacy.” To “win,” the Order says, AI companies should not be encumbered by state regulation. “The policy of the United States,” the Order says, is “to sustain and enhance the United States’ global AI dominance through a minimally burdensome national policy framework for AI.” It sets up an AI Litigation Task Force to challenge state AI laws that allegedly do not do that.
Excepted from the Order are state laws on child safety protections, data center infrastructure, and state government use of AI.
Which State AI Laws?
The Order speaks generally about “state AI laws,” but does not define the term. In fact, AI legal issues are wide-ranging. Here are some examples of state AI laws:
Stalking and Harassment
A North Dakota statute criminalizes using a robot to frighten or harass another person. It defines a robot to include a drone or other system that uses AI technology. (N.D. Cent. Code § 12.1-17-07.(1), (2)(f)). This appears to be a “state AI law.” North Dakota statutes also prohibit stalking accomplished by using either a robot or a non-AI form of technology. (N.D. Cent. Code § 12.1-17-07.1(1)(d)). Preempting this statute would produce an anomalous result. It would be a crime to stalk somebody unless you use an AI-powered device to do it.
Political Deepfakes
Several states have enacted laws prohibiting the distribution of political deepfakes to influence an election. Regulations range from a prohibition against the distribution of a deepfake to influence an election within a specified time period before the election to requiring disclosure that it is AI-generated. Minn. Stat. § 609.771 is an example of such a regulation. The need for this kind of statute was highlighted in 2024 when someone used AI to clone Joe Biden’s voice and generate an audio file that sounded like Mr. Biden himself was urging people not to vote for him.
Sexual Deepfakes
Both state and federal governments have enacted laws aimed at curbing the proliferation of “revenge porn.” The TAKE IT DOWN Act is an example. Minn. Stat. § 604.32 is another example (deepfakes depicting intimate body parts or sexual acts).
State and federal laws in this area cover much of the same ground. The principal difference is that the federal crime must involve interstate commerce; state crimes do not. The only practical effect of preemption of this kind of state AI law, therefore, would be to eliminate state prohibitions of wholly intrastate sexual deepfakes. If the Executive Order succeeds in its objectives, then state laws that prohibit the creation or distribution of sexual deepfakes wholly within the same state, as some do, would be preempted, with the result that making and distributing sexual deepfakes would be lawful so long as you only transmit it to other people in your state and not to someone in a different state.
Digital Replicas
Many states have enacted laws prohibiting or regulating the unauthorized creation and exploitation of digital replicas. The California Digital Replicas Act and Tennessee’s ELVIS Act are examples. AI is used in the creation of digital replicas. It is unclear whether these kinds of enactments are “state AI laws.” Arguably, a person could use technologies more primitive than generative-AI to create a digital image of a person. If these statutes are preempted only to the extent they apply to AI-generated digital replicas, then it would seem that unauthorized exploiters of other people’s faces and voices for commercial gain would be incentivized to use AI to engage in unauthorized commerceial exploitation of other people.
Child Pornography
Several states have either enacted laws or amended existing laws to bring AI-generated images of what look like real children within the prohibition against child pornography. See, e.g., N.D. Cent. Code § 12.1.-27.2—01. The Executive Order exempts “child safety protections,” but real children do not necessarily have to be used in AI-generated images. This kind of state statute arguably would not come within the meaning of a “child safety protection.”
Health Care Oversight
California’s Physicians Make Decisions Act requires a human person to oversee health care decisions about medical necessity. This is to ensure that medical care is not left entirely up to an AI bot. The law was enacted with the support of the California Medical Association to ensure that patients receive adequate health care. If the law is nullified, then it would seem that hospitals would be free to replace doctors with AI chatbots.
Chatbots
Some states prohibit the deceptive use of a chatbot, such as by falsely representing to people who interact with one that they are interacting with a real person. In addition, some states have enacted laws requiring disclosure to consumers when they are interacting with a non-human AI. See, e.g., the Colorado Artificial Intelligence Act.
Privacy
Some states have enacted either stand-alone laws or amended existing privacy laws to ensure they protect the privacy of personally identifiable information stored by AI systems. See, e.g., Utah Code 13-721-201, -203 (regulating the sharing of a person’s mental health information by a chatbot); and amendments to the California Consumer Privacy Act making it applicable to information stored in an AI system.
The Texas Responsible Artificial Intelligence Governance Act
Among other things, the Texas Responsible AI Governance Act prohibits the use of AI to restrict constitutional rights, to discriminate on the basis of race, or to encourage criminal activity. These seem like reasonable proscriptions.
Trump’s “AI czar,” venture capitalist David Sacks, has said the administration is not gong to “push back” on all state laws, only “the most onerous” ones. It is unclear which of these will be deemed “onerous.”
State AI Laws are Not Preempted
News media headlines are trumpeting that the Executive Order preempts state AI laws. This is not true. It directs this administration to try to strike down some state AI laws. It contemplates working with Congress to formulate and enact preemptive legislation. It is doubtful that a President could constitutionally preempt state laws by executive order.
Postscript
Striving for uniformity in the regulation of artificial intelligence is not a bad idea. There should be room, though, for both federal and state legislation. Rather than abolishing state laws, a uniform code or model act for states might be a better idea. Moreover, if we are going to start caring about an onerous complex of differing state laws, and feeling a need to establish a national framework, perhaps the President and Congress might wish to address the sprawling morass of privacy and data security regulations in the United States.
In recent years, the United States Supreme Court has been grappling with the thorny question of how the First Amendment applies to trademarks. In this blog post, attorney Thomas B. James attempts a reconciliation of First Amenment trademark decisions
In recent years, the courts have been grappling with some long-standing legal issues which – believe it or not – do not involve AI. Some involve trademark rights. The United States Supreme Court has been grappling with the thorny question of how the First Amendment applies to trademarks. In this blog post, attorney Thomas B. James attempts a reconciliation of recent pronouncements.
The Slants (Matal v. Tam)
Simon Tam, lead singer of the band, The Slants, tried to register the band name as a trademark. The USPTO denied the application, citing 15 U.S.C. § 1052(a). That provision prohibited the registration of any trademark that could “disparage . . . or bring . . . into contemp[t] or disrepute” any persons. The Fifth Circuit Court of Appeals declared the statute facially unconstitutional under the First Amendment. The U.S. Supreme Court affirmed.
The USPTO argued that the issuance of a registration certificate is “government speech.” Since the government and its members are not required to maintain neutrality in the views they express and are only required to maintain viewpoint neutrality when regulating private speech, the USPTO contended that it was not required to maintain viewpoint neutrality when deciding whether to issue a trademark registration certificate or not. The Court rejected that argument, holding that a trademark is private speech. As such, the government is not free to engage in viewpoint discrimination when deciding which ones to favor with a registration certification.
“If the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently.”
— Hon. Samuel Alito, in Matal v. Tam
Commercial speech
At one time, the Court took the position that the First Amendment does not protect commercial speech (speech relating to the marketing of products or services). Valentine v. Chrestensen (1942) (“[T]he Constitution imposes no . . . restraint on government as it respects purely commercial advertising.”)
The Central Hudson test, as it has come to be known, holds, first, that commercial speech receives First Amendment protection only if it concerns lawful activity and is not false or misleading. If it clears those two hurdles, then government regulation of it is permissible only if the regulation directly advances a substantial government interest and is not more extensive than necessary to serve that interest. That is to say, the regulation must be narrowly tailored to advance a substantial government interest.
In other words, commercial speech receives an intermediate level of scrutiny. Unlike regulations of political speech, the government only needs to identify a “substantial” interest, not necessarily a “compelling” one. Also unlike political speech, the regulation in question does not have to be the least speech-restrictive means of achieving it. It is required to be no more extensive than necessary to serve the interest in question, however.
In Tam, the Court held that it did not need to decide whether trademarks are commercial speech or not. The Court rejected the government’s contention that it has a substantial interest in protecting people from hearing things they might find offensive, declaring that “the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.'” SeeUnited States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting).
The Court also rejected the second justification the government offered, that disparaging trademarks disrupt the flow of commerce. The statute, the Court held, is not narrowly drawn to eradicate invidious discrimination. Prohibiting registration of trademarks that disparage any person, group or institution, it would also prohibit registration of marks like “Down with racists” or “Slavery is an evil institution.”
The Court also identified what it described as a “deeper problem”:
If affixing the commercial label permits the suppression of any speech that may lead to political or social “volatility,” free speech would be endangered.
— Hon. Samuel Alito, in Matal v. Tam
In short, the Court acknowledged that commercial speech can have non-commercial expressive content. When that is the case, courts should zealously guard against government encroachment on private speech rights.
FUCT
Two years later, the Court was asked to review the USPTO’s refusal to register FUCT as a trademark. The Court came to the same conclusion about the portion of the statute that prohibited the registration of “scandalous” or “immoral” trademarks as it did about the prohibition against registering “disparaging” trademarks. Because this, too, involves viewpoint discrimination, the Court held that this prohibition, too, violates the First Amendment. Iancu v. Brunetti, 139 S. Ct. 2294 (2019)
I’ve written about this case before. and about the Supreme Court’s decision to review it. Basically, Jack Daniel’s Property owned (and still owns) trademarks in the Jack Daniel’s bottle and in many of the words and graphics on its label for its alcoholic beverages. VIP Products began making and marketing a dog toy designed to look like a Jack Daniel’s whiskey bottle. The toy had labels affixed to it parodying the Jack Daniel’s label. For example, it used the phrase “Bad Spaniels” in place of “Jack Daniel’s.” And instead of “Old No. 7 Brand Tennessee Sour Mash Whiskey,” it displayed “The Old No. 2 On Your Tennessee Carpet.” Jack Daniel’s issued a cease-and-desist demand. In response, VIP Products filed a declaratory judgment action seeking a declaration that its parody neither infringed nor diluted Jack Daniel’s trademarks and, in any event, was a protected “fair use” under the First Amendment.
The district court rejected these claims, essentially holding that the First Amendment does not establish a “fair use” exception for the expressive aspect(s) of a trademark when it is used as a source-identifier for a product. The Ninth Circuit Court of Appeals reversed.
The United States Supreme Court reversed the Ninth Circuit. The Court opined that although using a trademark for an expressive purpose might qualify for First Amendment protection, that protection does not insulate the user from trademark infringement or dilution liability if it is also used as a source-identifier. Parodic uses are exempt from liability only if they are not used to designate the source of a product or service.
The Court did not mention Central Hudson or discuss the commercial speech doctrine. It is likely the Court did not feel a need to do that because trademark infringement involves trademarks that are claimed to be likely to confuse consumers about the source of a product or service. Such trademarks would not clear one of the first hurdles for commercial speech protection under Central Hudson, namely, that the speech must not be misleading.
“Trump Too Small” (Vidal v. Elster)
Steve Elster applied to federally register the trademark “Trump too small” to use on shirts and hats. The USPTO denied the application, citing 15 U. S. C. §1052(c). That provision prohibits the registration of a mark that “[c]onsists of or comprises a name . . . identifying a particular living individual except by his written consent.” Elster appealed, asserting that this statute infringed his First Amendment right to free speech.
The Federal Circuit Court of Appeals agreed with him. The U.S. Supreme Court, however, reversed the Federal Circuit, holding that this provision of the Lanham Act does not violate the First Amendment. Vidal v. Elster, 602 U.S. __ (2024).
The decision in this case is consistent with Jack Daniel’s. Unlike Jack Daniel’s, this case did not involve a claim that the use of the trademark was likely to cause consumer confusion about the source of the product. (After all, how likely would consumers be to mistakenly believe that Trump was marketing products ridiculing his own size?) In this case, the first two hurdles for commercial speech protection under Central Hudson would appear to have been cleared.
Reconciling this decision with Tam is not as easy. What happened to the idea the Court voiced in Tam that when commercial speech has non-commercial expressive content, courts should zealously guard against government encroachment on private speech rights?
The legislative history of Section 1052(c) demonstrates that the prohibition against using a living person’s name as part of a trademark was enacted for essentially the same reason that the prohibitions against disparaging, scandalous or immoral trademarks were: Members of Congress found the “idea of prostituting great names by sticking them on all kinds of goods” — like the idea of including scandalous, immoral or disparaging content in a trademark — to be “very distasteful,” and wanted “to prevent such outrages of the sensibilities of the American people.”1 That was the very same kind of “interest” that the government invoked in Tam and that the Court found insufficient and not tailored narrowly enough to sustain the speech restriction at issue in that case. What was different here?
By requiring consent, Section 1052(c) effectively precludes the registration of a mark that criticizes an elected government official while allowing the official to register positive messages about himself or herself. HILLARY FOR AMERICA was permitted to be registered, but HILLARY FOR PRISON was not. It seems an awful lot like viewpoint discrimination, doesn’t it?
Why shouldn’t the politically expressive aspect of a trademark (as distinguished from the purely source-identifying aspect) receive the same exacting strict scrutiny analysis that normally applies to regulations of political speech?
Well, the Supreme Court did not think this case involved viewpoint discrimination. The requirement of consent to use a person’s name in a trademark applies to people of all political persuasions, the Court reasoned. Consent would be required to register a politician’s name as a trademark whether the politician in question is a Democrat, a Republican, a Communist, or anything else, and consent would be required whether the politician in question supports or opposes, say, abortion rights, or gun rights, or anything else.
Nevertheless, the fact remains that the statute, as applied, requires an elected official’s prior approval of a trademark before it can be registered. Maybe that doesn’t rise to the level of a direct prior restraint on speech, but it would certainly seem to have a chilling effect on political speech at the core of the First Amendment.
Conclusion
It is not at all clear to me that the cases can be reconciled on a logically coherent doctrinal basis. Reliance on the common law history of trademarks might support a determination that Section 1052(c) is not unconstitutional on its face. I am not completely convinced, however, that the Court was adequately responsive to the argument that the statute is unconstitutional as applied to the names of elected officials. But what do I know? I’m just some guy living next to a cornfield in the middle of nowhere.
AI has been trained not just to perform customer service tasks, but also to perform analytics and diagnostic tests; to repair products; to update software; to drive cars; and even to write articles and create images and videos. These developments may be helping to streamline tasks and improve productivity, but they have also generated a range of new legal issues.
AI is not new. Its implementation also is not new. In fact, consumers regularly interact with AI-powered systems every day. Online help systems often use AI to provide quick answers to questions that customers routinely ask. Sometimes these are designed to give a user the impression that s/he is communicating with a person.
AI systems also perform discrete functions such as analyzing a credit report and rendering a decision on a loan or credit card application, or screening employment applications.
Many other uses have been found for AI and new ones are being developed all the time. AI has been trained not just to perform customer service tasks, but also to perform analytics and diagnostic tests; to repair products; to update software; to drive cars; and even to write articles and create images and videos. These developments may be helping to streamline tasks and improve productivity, but they have also generated a range of new legal issues.
Tort liability
While there are many different kinds of tort claims, the elements of tort claims are basically the same: (1) The person sought to be held liable for damages or ordered to comply with a court order must have owed a duty to the person who is seeking the legal remedy; (2) the person breached that duty; (3) the person seeking the legal remedy experienced harm, i.e., real or threatened injury; and (4) the breach was the actual and proximate cause of the harm.
The kind of harm that must be demonstrated varies depending on the kind of tort claim. For example, a claim of negligent driving might involve bodily injury, while a claim of defamation might involve injury to reputation. For some kinds of tort claims, the harm might involve financial or economic injury.
The duty may be specified in a statute or contract, or it might be judge-made (“common law.”) It may take the form of an affirmative obligation (such as a doctor’s obligation to provide a requisite level of care to a patient), or it may take a negative form, such as the common law duty to refrain from assaulting another person.
The advent of AI does not really require any change in these basic principles, but they can be more difficult to apply to scenarios that involve the use of an AI system.
Example. Acme Co. manufactures and markets Auto-Doc, a machine that diagnoses and repairs car problems. Mike’s Repair Shop lays off its automotive technician employees and replaces them with one of these machines. Suzie Consumer brings her VW Jetta to Mikes Repair Shop for service because she has been hearing a sound that she describes as being a grinding noise that she thinks is coming from either the engine or the glove compartment. The Auto-Doc machine adds engine oil, replaces belts, and removes the contents of the glove compartment. Later that day, Suzie’s brakes fail and her vehicle hits and kills a pedestrian in a crosswalk. A forensic investigation reveals that her brakes failed because they were badly worn. Who should be held liable for the pedestrian’s death – Suzie, Mike’s, Acme Co., some combination of two of them, all of them, or none of them?
The allocation of responsibility will depend, in part, on the degree of autonomy the AI machine possesses. Of course, if it can be shown that Suzie knew or should have known that her brakes were bad, then she most likely could be held responsible for causing the pedestrian’s death. But what about the others? Their liability, or share of liability, is affected by the degree of autonomy the AI machine possesses. If it is completely autonomous, then Acme might be held responsible for failing to program the machine in such a way that it would test for and detect worn brake pads even if a customer expresses an erroneous belief that the sound is coming from the engine or the glove compartment. On the other hand, if the machine is designed only to offer suggestions of possible problems and solutions, leaving it up to a mechanic to accept or reject them, then Mike’s might be held responsible for negligently accepting the machine’s recommendations.
Assuming the Auto-Doc machine is fully autonomous, should Mike’s be faulted for relying on it to correctly diagnose car problems? Is Mike’s entitled to rely on Acme’s representations about Auto-Doc’s capabilities, or would the repair shop have a duty to inquire about and/or investigate Auto-Doc’s limitations? Assuming Suzie did not know, and had no reason to suspect, her brakes were worn out, should she be faulted for relying on a fully autonomous machine instead of taking the car to a trained human mechanic? Why or why not?
Deception
AI tools are notorious for making things up. Many attorneys have gotten into trouble for filing briefs with citations to non-existent cases in them. Known as AI hallucinations, they can be comical at times.
The people in this AI-generated image appear to be such hot beverage aficionados that they keep one of their many cups of the stuff suspended in mid-air in front of them. And of course, the man has six digits on his right hand – five fingers and a thumb – a standard in the world of AI hallucinations now.
(This is an AI hallucination.)
Unfortunately, AI can also hallucinate false information about people. It can also be prompted to create false and defamatory statements, false product or political candidate endorsements, books and other creative works “in the style of” a well-known author or artist that are then falsely advertised as originals, digital replicas, voice clones, and sexual deepfakes. Comical hallucinations notwithstanding, generative-AI tools are capable of great deception and therefore great harm.
It is conceivable that an AI system might engage in activity that is prohibited by an applicable jurisdiction’s criminal laws. E-mail address harvesting is an example. In the United States, for example, the CAN-SPAM Act makes it a crime to send a commercial email message to an email address that was obtained by automated scraping of Internet websites for email addresses. Of course, if a person intentionally uses an AI system for scraping, then liability should be clear. But what if an AI system “learns” to engage in scraping?
AI-generated criminal output may also be a problem. Some countries have made it a crime to display a Nazi symbol, such as a swastika, on a website. Will criminal liability attach if a website or blog owner uses AI to generate illustrated articles about World War II and the system generates and displays articles that are illustrated with World War II era German flags and military uniforms? In the United States, creating or possessing child pornography is illegal. Will criminal liability attach if an AI system generates it?
Some of these kinds of issues can be resolved through traditional legal analysis of the intent and scienter elements of the definitions of crimes. A jurisdiction might wish to consider, however, whether AI systems should be regulated to require system creators to implement measures that would prevent illegal uses of the technology. This raises policy and feasibility questions, such as whether and what kinds of restraints on machine learning should be required, and how to enforce them. Further, would prior restraints on the design and/or use of AI-powered expressive-content-generating systems infringe on First Amendment rights?
Product liability
Related to the problem of allocating responsibility for harm caused by the use of an AI mechanism is the question whether anyone should be held liable for harm caused when the mechanism is not defective, that is to say, when it is operating as it should.
Example. Acme Co. manufactures and sells Auto-Article, a software program that is designed to create content of a type and kind the user specifies. The purpose of the product is to enable a website owner to generate and publish a large volume of content frequently, thereby improving the website’s search engine ranking. It operates by scouring the Internet and analyzing instances of the content the user specifies to produce new content that “looks like” them. XYZ Co. uses the software to generate articles on medical topics. One of these articles explains that chest pain can be caused by esophageal spasms but that these typically do not require treatment unless they occur frequently enough to interfere with a person’s ability to eat or drink. Joe is experiencing chest pain. He does not seek medical help, however, because he read the article and therefore believes he is experiencing esophageal spasms. He later collapses and dies from a heart attack. A medical doctor is prepared to testify that his death could have been prevented if he had sought medical attention when he began experiencing the pain.
Should either Acme or XYZ Co. be held liable for Joe’s death? Acme could argue that its product was not defective. It was fit for its intended purposes, namely, a machine learning system that generates articles that look like articles of the kind a user specifies. What about XYZ Co.? Would the answer be different if XYZ had published a notice on its site that the information provided in its articles is not necessarily complete and that the articles are not a substitute for advice from a qualified medical professional? If XYZ incurs liability as a result of the publication, would it have a claim against Acme, such as for failure to warn it of the risks of using AI to generate articles on medical topics?
Consumer protection
AI system deployment raises significant health and safety concerns. There is the obvious example of an AI system making incorrect medical diagnoses or treatment recommendations. Autonomous (“self-driving”) motor vehicles are also examples. An extensive body of consumer protection regulations may be anticipated.
Forensic and evidentiary issues
In situations involving the use of semi-autonomous AI, allocating responsibility for harm resulting from the operation of the AI system may be difficult. The most basic question in this respect is whether an AI system was in use or not. For example, if a motor vehicle that can be operated in either manual or autonomous mode is involved in an accident, and fault or the extent of liability depends on that (See the discussion of tort liability, above), then a way of determining the mode in which the car was being driven at the time will be needed.
If, in the case of a semi-autonomous AI system, tort liability must be allocated between the creator of the system and a user of it, the question of fault may depend on who actually caused a particular tortious operation to be executed – the system creator or the user. In that event, some method of retracing the steps the AI system used may be essential. This may also be necessary in situations where some factor other than AI contributed, or might have contributed, to the injury. Regulation may be needed to ensure that the steps in an AI system’s operations are, in fact, capable of being ascertained.
Transparency problems also fall into this category. As explained in the Journal of Responsible Technology, people might be put on no-fly lists, denied jobs or benefits, or refused credit without knowing anything more than that the decision was made through some sort of automated process. Even if transparency is achieved and/or mandated, contestability will also be an issue.
Data Privacy
To the extent an AI system collects and stores personal or private information, there is a risk that someone may gain unauthorized access to it.. Depending on how the system is designed to function, there is also a risk that it might autonomously disclose legally protected personal or private information. Security breaches can cause catastrophic problems for data subjects.
Publicity rights
Many jurisdictions recognize a cause of action for violation of a person’s publicity rights (sometimes called “misappropriation of personality.”) In these jurisdictions, a person has an exclusive legal right to commercially exploit his or her own name, likeness or voice. To what extent, and under what circumstances, should liability attach if a commercialized AI system analyzes the name, likeness or voice of a person that it discovers on the Internet? Will the answer depend on how much information about a particular individual’s voice, name or likeness the system uses, on one hand, or how closely the generated output resembles that individual’s voice, name or likeness, on the other?
Contracts
The primary AI-related contract concern is about drafting agreements that adequately and effectively allocate liability for losses resulting from the use of AI technology. Insurance can be expected to play a larger role as the use of AI spreads into more areas.
Bias, Discrimination, Diversity & Inclusion
Some legislators have expressed concern that AI systems will reflect and perpetuate biases and perhaps discriminatory patterns of culture. To what extent should AI system developers be required to ensure that the data their systems use are collected from a diverse mixture of races, ethnicities, genders, gender identities, sexual orientations, abilities and disabilities, socioeconomic classes, and so on? Should developers be required to apply some sort of principle of “equity” with respect to these classifications, and if so, whose vision of equity should they be required to enforce? To what extent should government be involved in making these decisions for system developers and users?
Copyright
AI-generated works like articles, drawings, animations, music and so on, raise three kinds of copyright issues:
Input infringement issues, i.e., questions like whether AI systems that are designed to create new works based on existing copyright-protected works infringe the copyrights in those works. The highest-stake legal battleground today centers on this. I provide a layperson-friendly explanation of this issue and the initial lawsuits raising it in Does AI Infringe Copyright?
Output infringement issues, i.e., whether output generated by AI tools infringes copyrights in the works on which the AI was trained
Output ownership issues, namely, who, if anybody, owns the copyright in an AI-generated work (assuming it does not infringe anyone else’s copyright.) This issue really gets down to the core of what a copyright is and how (and by whom or by what) it is created. For a deeper dive into the theoretical and historical framework for non-human authorship, read my article, AI Can Create But Is It Art?
As debate around the interplay of artificial intelligence and intellectual property rights intensifies, legislators and regulators can be expected to attempt to establish formal frameworks, rules and guidelines. The United States Copyright Office has been among the first to enter the fray. It has issued a series of Guidances on AI legal issues. I wrote a blog post summarizing issues addressed in one of these Copyright Office reports in New AI Copyright Guidance.
Patents, Trademarks, and other IP
Computer programs can be patented. AI systems can be devised to write computer programs. Can an AI-generated computer program that meets the usual criteria for patentability (novelty, utility, etc.) be patented?
Is existing intellectual property law adequate to deal with AI-generated inventions and creative works? The World Intellectual Property Organization (WIPO) apparently does not think so. It is formulating recommendations for new regulations to deal with the intellectual property aspects of AI.
Trademark issues like infringement and dilution can come up in AI litigation, too, as one of the Getty Images lawsuits demonstrates.
AI Policy
As state and federal governments act to regulate in this area, expect to see a greater focus among policy-makers on public policy questions on fundamental issues like the desirability of uniform legislation, policies on governmental use of AI technology, federalism issues (state vs. federal control), as well as global AI regulation. President Trump’s Executive Order on AI is an example. Time permitting, I will try to provide updates on new AI-related laws as they are enacted, at least to the extent they touch on copyright questions.
Conclusion
AI systems raise a wide range of legal issues. The ones identified in this article are merely a sampling, not a complete listing of all possible issues. Not all of these legal issues have answers yet. It can be expected that more AI regulatory measures, in more jurisdictions around the globe, will be coming down the pike very soon.
Get updates on the courts: Follow my AI Lawsuits Roundup page for a look at current litigation against generative AI platforms.
Contact attorney Thomas James
Contact Minnesota attorney Thomas James for help with copyright and trademark registration and other copyright and trademark-related matters.
The facts about racial and ethnic disparities in copyright registration ownership are hard to come by. Findings in a George Washington University Faculty Research Paper, however, are a bit surprising. Black authors and creators, it seems, are actually over-represented here. Apparently, it is authors of Hispanic origin who are under-represented.
Economic Inequality
Regardless of the reason for the meeting, it is good to see that it is bringing attention to the long-standing economic unfairness of the U.S. system .To give you an idea of what the problem is, think about this: The registration fee for a single work is $125 ($65 or $45 if you file online). A lucky few score jobs as technical writers or creators of other kinds of content. Their copyrights are almost always owned by their employers as “works made for hire.” This can shift responsibility for fees to the employer. The down side of “work for hire” is that the real artists and authors lose ownership of their creative works.
For freelance writers and creators, the going rate for article writers is $0 to $20 per article. Meanwhile, due to the proliferation of free music on the Internet, the average songwriter can expect to make $0 or less per song. Only a tiny percentage of songwriters make enough money to cover the cost of registering a copyright in a song. As for painters, well, there’s a reason “starving artist” is such a familiar expression. Group registration is sometimes possible, and when it is, some money can be saved that way. In many cases, however, this option is not available.
The United States and most other countries, by treaty, do not require a work to be registered in order to get copyright protection. A copyright arises as soon as a creative work is fixed in a tangible medium of expression. That’s great, but owning a copyright won’t do you much good if you need a registration certificate to enforce it. As I said in an Illinois Law Review article, the United States should eliminate its pre-litigation registration requirement.
Maybe the diversity, equity and inclusion movement will finally bring Congress around to doing something.
