How do we handle intellectual property and copyright in AI?

Current U.S. copyright law requires human authorship for copyright protection. The Copyright Office has declined to register works produced autonomously by AI systems and has indicated that AI-generated content without sufficient human creative contribution is not eligible for copyright protection. This creates uncertainty about the IP status of AI-generated code, marketing materials, reports, and other work product.

The practical implication is that AI-generated content may be in the public domain, freely usable by competitors without any copyright claim. Organizations relying on AI-generated content for competitive advantage should evaluate whether that content is actually protectable. Where human creative contribution is substantial and documented, copyright may attach to the human-authored portions.

Several major AI developers are defendants in copyright litigation alleging that training models on copyrighted content without license constitutes infringement. The legal outcome of these cases remains uncertain, but the risk is material for organizations training their own models on internet-sourced or third-party content.

If you are training or fine-tuning models, document the provenance of your training data and the legal basis for its use. Prefer datasets that are explicitly licensed for AI training use. For third-party models you deploy, review vendor representations about training data provenance and indemnification coverage for copyright claims arising from model outputs.

Review your AI vendor agreements for IP provisions covering: who owns outputs generated using the service, whether the vendor claims any license to outputs, and whether the vendor indemnifies you for copyright claims arising from the model's training data or outputs. Vendor positions vary significantly on these points and are negotiable in enterprise agreements.

For AI-assisted work product delivered to clients, review your engagement agreements to ensure they accurately reflect the use of AI tools and allocate IP and liability appropriately. Clients in regulated industries may have their own policies about AI use by outside counsel, consultants, and vendors. Proactive disclosure is generally preferable to retroactive discovery.