For a work to be protected under the Copyright Act of 1976, it must be an original work of authorship fixed in any tangible medium of expression. Critical to a work qualifying for copyright protection is that it must be original to the author. As otherwise stated, the work must be independently crafted, not copied from others, and possess some minimal degree of creativity.

To be sure, artists, Taylor Swift included, cannot copyright their styles, no matter how unique they may be. It has been said that while Picasso might be entitled to copyright his portrait of three women painted in his cubist motif, others are free to create cubist paintings without violating his IP rights. (Dave Grossman Designs v. Bortin, 347 F.Supp. 1150 (N.D. Ill. 1972)

Yet it remains unclear what to make of works created by machines in response to an individual's creative input, especially when those works are based upon the IP of third parties.

Who can own the IP rights to works created (at least in part) by non-humans is a question that courts have grappled with over the years. The 9th U.S. Circuit Court of Appeals has expressly held that a monkey that took a photograph could not have authorship rights in the image; however, it remains an open and debated question whether the person who owned the camera and set it up for the primate could have a copyright interest in the picture. (Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018)

The relatively recent DABUS case follows suit. Stephen Thaler invented an AI machine he dubbed a "Device for Autonomous Bootstrapping of Unified Sentience" (DABUS). That device created artwork representing simulations of a dying brain, including an image titled "A Recent Entrance to Paradise" that was the subject of an unsuccessful attempt at securing IP protection.

The U.S. Copyright Office refused to register a copyright for DABUS's work on the basis that human authorship is required, a finding supported last year by the Copyright Office Review Board. In the ensuing legal battle, the U.S. District Court for the Eastern District of Virginia upheld that decision, holding that the Patent Act requires an inventor to be an individual, which the court interpreted to mean a "natural person." (Thaler v. Hirshfeld, No 1:20-cv-903 (E.D. Va. Sep. 2, 2021) This ruling held firm on appeal before the U.S. Court of Appeals for the Federal Circuit. Thaler v. Vidal, No 21-2347 (Fed. Cir. Aug. 5, 2022)

Outside the U.S., at least two jurisdictions have come to opposite conclusions. South Africa's patent office granted a patent for an invention conceived by DABUS, and an Australian court similarly determined that an AI machine could be an inventor.

By virtue of the precedent set by the 9th Circuit and U.S. Copyright Office, it appears that copyrights to content generated by AI cannot be owned by the technology itself. But what about individuals who create prompts and enter them into platforms such as ChatGPT, can they claim ownership of the output?

In the design world, a graphic artist can copyright artwork made through the use of drawing software, such as the Adobe Creative Suite. By extension, those generating songs, content, code or anything else with the help of ChatGPT or similar creative tools should arguably be able to obtain IP protection of the works they mastermind. This is particularly true when they contribute their own revisions and additional original material into an AI-composed draft to arrive at a final product, as we did with the Tay-inspired lyrics in this article.

On the other hand, when AI is leveraged, it can be argued that a user's control of the output is limited, thus calling into question whether material written by ChatGPT and comparable technology is original to the author. For purposes of copyrights, a person must have enough control over the creative process to be able to claim ownership of the work in question. That being said, an important indicator of true authorship is decision-making authority over what is included in a creation and any changes made to it.

Clearly, users do not impart any decision-making beyond the prompt when it comes to the content spit out by platforms like ChatGPT, unless, of course, they manufacture meaningful revisions to make it their own. Therefore, there is a strong case to be made that AI-created works are public domain immediately upon creation and not subject to copyright protection whatsoever. Alternatively, the output of AI tools such as ChatGPT might also be considered derivative works in certain circumstances.

Without question, if AI-generated content uses ideas that populate the internet, but does not actually copy any preexisting IP, the use would not be derivative nor would it result in copyright infringement. Nonetheless, should ChatGPT or parallel technology generate content that includes copyrighted materials left unattributed — for instance, actual Taylor Swift lyrics — it may be time to call a lawyer.

Of note, ChatGPT's legal fine print addresses this possibility.

Its terms and conditions state that ownership rights in ChatGPT output (read, the content generated based upon a user's input) are assigned to the user, with the following caveat: The user, as owner of the output, becomes "responsible for [the output], including for insuring that it does not violate applicable law." Certainly, this includes IP law, meaning the net effect of this language could be liability on the part of individuals for unwittingly infringing upon protected IP.

No doubt about it, the state of IP law, and copyrights in particular, is in flux given the extraordinary popularity of ChatGPT and similar AI tools hitting the mainstream and the cascade of content they are producing. As of this writing, the U.S. Copyright Office has not indicated whether copyrights on works generated by AI can be registered, though it seems only a matter of time before these issues are tested in the courts.

As we await what is sure to be a flurry of legal wrangling over the IP issues stemming from AI, users must be careful not to create exposure for themselves in the form of potential copyright infringement lawsuits.

Perhaps our personalized ChatGPT lyrics say it best:

Editor's note: This expert analysis was published May 1, 2023.