Where AI and property law intersect; Arizona State University (ASU) News, April 5, 2024

  Dolores Tropiano, Arizona State University (ASU) News; Where AI and property law intersect

"Artificial intelligence is a powerful tool that has the potential to be used to revolutionize education, creativity, everyday life and more.

But as society begins to harness this technology and its many uses — especially in the field of generative AI — there are growing ethical and copyright concerns for both the creative industry and legal sector.

Tyson Winarski is a professor of practice with the Intellectual Property Law program in Arizona State University’s Sandra Day O’Connor College of Law. He teaches an AI and intellectual property module within the course Artificial Intelligence: Law, Ethics and Policy, taught by ASU Law Professor Gary Marchant.

“The course is extremely important for attorneys and law students,” Winarski said. “Generative AI is presenting huge issues in the area of intellectual property rights and copyrights, and we do not have definitive answers as Congress and the courts have not spoken on the issue yet.”"

Copyright Board Upholds Latest Refusal to Register AI Generated Art; The Fashion Law (TFL), December 12, 2023

 TFL ; Copyright Board Upholds Latest Refusal to Register AI Generated Art

"The Office primarily refused to register the work on the basis that it “lacks the human authorship necessary to support a copyright claim.” Specifically, the Office stated that despite Sahni’s claim that the work includes some human creative input, the work is not registrable, as “this human authorship cannot be distinguished or separated from the final work produced by the computer program.” 

Following an initial request for reconsideration, in which Sahni argued that “the human authorship requirement does not and cannot mean a work must be created entirely by a human author,” the Copyright Office again concluded that the work could not be registered, as it “is a derivative work that does not contain enough original human authorship to support a registration.” The Office found that “the new aspects of the [SURYAST] work were generated by ‘the RAGHAV app, and not Mr. Sahni – or any other human author,'” making it so that the “derivative authorship was not the result of human creativity or authorship” and therefore, not registrable."

Explainer: The Supreme Court, Fair Use and the Future of Protected Artistic Expression; Jurist, December 1, 2022

  Jaimee Francis | Boston University School of Law, Jurist; Explainer: The Supreme Court, Fair Use and the Future of Protected Artistic Expression

"What’s at stake here?

The decision of the current Supreme Court case can shape the future of what does and does not constitute fair use. Goldsmith claimed that Warhol’s images based upon her copyrighted photographs constituted a derivative work. Thus, Goldsmith argued that the Warhol Foundation infringed her exclusive right to prepare derivative works and is therefore liable to her. The Warhol Foundation, however, argued that Warhol’s images were sufficiently transformative and thus constituted fair use. As such, the Warhol Foundation argued that it did not infringe Goldsmith’s copyright and is therefore not liable for its use of Goldsmith’s work in the Prince illustrations.

By finding in favor of Goldsmith, who owns copyright in the Prince photographs, the applicability of fair use may be limited. In this scenario, future content creators may face increased liability when creating new content based on copyrighted work. Because creativity is often inspired by some underlying work, such a decision may stifle creativity. As the Acuff-Rose case highlights, for example, works like parodies of a copyrighted work would constitute infringement without fair use. On the other hand, by finding in favor of the Warhol Foundation, which used Goldsmith’s copyrighted work in its work, future copyright owners may be denied a remedy when a user has unfairly used their creative work. Because the copyright regime has historically protected a creator’s financial incentive, such a decision may stifle creativity. In either scenario, creativity may be stifled: over-protecting a work may prevent others from using that work in their creative process, while under-protecting a work may prevent creators from entering the market without an assurance of monetary gain. As the Gerald Ford case highlights, for example, some uses may unfairly exploit the initial creator’s work. As the Supreme Court noted in that case, quoting in part an earlier decision, “The challenge of copyright is to strike the ‘difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other hand.'”"

To Boldly Go Where No Fan Production Has Gone Before; Slate, 7/13/16

Marissa Martinelli, Slate; To Boldly Go Where No Fan Production Has Gone Before:

"The issues at the heart of the Axanar case are complex—in addition to copyright infringement, CBS and Paramount are accusing the Axanar team of profiting from the production by paying themselves salaries, among other things. Abrams, who directed 2009’s Star Trek and 2013’s Star Trek Into Darkness, promised during a fan event back in May that the lawsuit would be going away at the behest of Justin Lin, the Beyond director who has sided, surprisingly, with Axanar over Paramount. But despite Abrams’ promise, the lawsuit rages on, and in the meantime, other Trekkie filmmakers have had to adapt. Federation Rising, the planned sequel to Horizon, pulled the plug before fundraising had even started, and Star Trek: Renegades, the follow-up to Of Gods and Men that raised more than $132,000 on Indiegogo, has dropped all elements of Star Trek from the production and is now just called Renegades. (Amusingly, this transition seems to have involved only slight tweaks, with the Federation becoming the Confederation, Russ’ character Tuvok becoming Kovok, and so on.) Other projects are stuck in limbo, waiting to hear from CBS whether they can boldly go forth with production—or whether this really does spell the end of the golden age of Star Trek fan films.

Axanar may very well have crossed a line, and CBS and Paramount are, of course, entitled to protect their properties. But in the process, they have suffocated, intentionally or otherwise, a robust and long-standing fan-fiction tradition, one that has produced remarkable labors of love like Star Trek Continues, which meticulously recreated the look and feel of the 1960s show, and an hourlong stop-motion film made by a German fan in tribute to Enterprise—a project almost eight years in the making. It’s a tradition that gave us web series like Star Trek: Hidden Frontier, which was exploring same-sex relationships in Star Trek well before the canon was ready to give us a mainstream, openly gay character."