Generative artificial intelligence, such as ChatGPT, should be used only when policies are in place to ensure a company's intellectual property isn't lost and that trade secrets aren't being disclosed, legal experts say. This is true despite generative AI's potential usefulness in knowledge work, screening job candidates and accommodating individuals with disabilities.
"AI-generated works may qualify for copyright registration if they have sufficient human authorship to support a copyright claim," said Elizabeth Shirley, an attorney with Burr & Forman in Birmingham, Ala. However, if people "merely use prompts to create AI-generated works, the content is likely not subject to copyright protection."
Different Kinds of Intellectual Property Risks
There are three different potential intellectual property threats posed by generative AI, according to Bradford Newman, an attorney with Baker McKenzie in Palo Alto, Calif.
First, there are potential copyright infringement claims from third parties. For example, copyright holders of images used by generative AI tools may sue to be compensated if there has been unlawful infringement.
Second, there's the risk that the company cannot copyright the output of its own generative AI. If AI is the "mastermind," then whatever it generates is not copyrightable, Newman said. What is written entirely by a person can be copyrighted, but even human edits to what goes though generative AI may not render the edits copyrightable, he explained.
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