Justin E. Pierce

Subscribe to Justin E. Pierce's Posts

Justin Pierce is a co-chair of Venable's Intellectual Property Division. Justin has significant experience advising companies and their executives on how best to acquire, develop, and apply their intellectual property to achieve their business objectives. He has guided clients through a wide range of matters involving patent litigation, trademark and brand protection, anti-counterfeiting initiatives, copyright, design rights, trade secrets, and licensing. Justin is also well versed in strategies for handling rights of publicity, domain name, and social media disputes. He routinely advises companies with respect to artificial intelligence and cutting-edge issues involving intellectual property.

Contact:Read more about Justin E. Pierce

The U.S. Supreme Court’s recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith is unlikely to shed much light on whether the use of copyrighted material in artificial intelligence (AI) content will lead to liability. The Court’s decision mandates that courts look to the “specific use” of the copyrighted material at issue when evaluating fair use under the Copyright Act. So, what specific factors should AI developers and users consider when using copyrighted content in the AI space post-Warhol?

The Copyright Act and Generative AI

Under the Copyright Act, copyright holders have the exclusive right to reproduce their work, prepare derivative works, distribute copies of the work, perform the work, and display the work publicly. In developing an AI system, programmers and companies can violate exclusive rights of copyright holders at two distinct points:

  • By using copyrighted material as an input to teach the AI software
  • By creating an unauthorized derivative output of the copyrighted work because of the AI application. The distinctions between inputs and outputs involving this space are detailed here and here.

Continue Reading How Will Use of Copyrighted Content in Artificial Intelligence Be Evaluated After the Supreme Court’s Warhol Decision?

The recent explosion in popularity of generative artificial intelligence (AI), such as ChatGPT, has sparked a legal debate over whether the works created by this technology should be afforded copyright protections. Despite that several lawsuits on the subject have been filed, and the U.S. Copyright Office has recently issued guidance clarifying its position, that the bounds of copyright protections for works created using AI are not yet clearly defined and many questions remain unanswered. For now, it appears that copyright eligibility for such works depends on the extent of human involvement in the creative process and whether any use of copyrighted work to generate a new work falls within the purview of the fair use doctrine.

The analysis of this issue has been framed around two key aspects of the technology itself: input data and output data. Input data are the pre-existing data that human users introduce into the AI system that the system then uses to generate new works. Output data are the works ultimately created by the system—the finished product. Thus, copyright eligibility for AI-generated or AI-assisted works depends on whether the AI system’s use of copyrighted works as input data is permissible and whether the output data is itself copyrightable.Continue Reading ChatGPT and the Rise of Generative Artificial Intelligence Spark Debate on Copyright Protections of AI-Generated Works