Who Ultimately Owns Content Generated by ChatGPT and Other AI Platforms?

The creation of ChatGPT, and AI chatbots like it, have sparked a laundry list of questions raised around content custody, ownership, and attribution.

Partner Margaret Esquenet told Forbes that for a work to have copyright protection under current U.S. law, “the work must be the result of original and creative authorship by a human author. Absent human creative input, a work is not entitled to copyright protection. As a result, the U.S. Copyright Office will not register a work that was created by an autonomous artificial intelligence tool.”

Margaret explains that if an active copyright or IP-infringement challenge to AI-generated content occurs, things get more complex, “[b]ecause a U.S. author needs to secure a registration or a refusal from the Copyright Office to enforce rights, a potential path to challenging the human authorship obligation is to either appeal a Copyright Office registration refusal or pursue an infringer after attempting to register rights with the Office. This strategy will likely face strong headwinds in light of the legislative history of the human authorship prerequisite and subsequent court decisions affirming the requirement.”

The human authorship standard means that “under U.S. current law, an AI-created work is likely either (1) a public domain work immediately upon creation and without a copyright owner capable of asserting rights or (2) a derivative work of the materials the AI tool was exposed to during training,” Margaret continues. “Who owns the rights in such a derivative would likely be dependent on various issues, including where the dataset for training the AI tool originated, who, if anyone, owns the training dataset (or its individual components), and the level of similarity between any particular work in the training set and the AI work.”

When asked what happens if ChatGPT creates the exact same passages for someone else, Margaret posited, “Even assuming that the rightful copyright owner is the person whose queries generated the AI work, the concept of independent creation may preclude two parties whose queries generated the same work from being able to enforce rights against each other. Specifically, a successful copyright infringement claim requires proof of copying—independent creation is a complete defense. Under this hypothetical, neither party copied the other’s work, so no infringement claim is likely to succeed.”

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