Copyright Fair Use Regulatory Approaches in AI Content Generation

Ariel Soiffer is a partner and Aric Jain is an associate at the law firm WilmerHale. Midjourney, a platform to generate images from natural language descriptions, is an example of generative AI tools that are raising new questions around copyright and fair use, The impact of generative artificial intelligence (AI) has quickly caught the attention of technologists and policymakers around the world. Among others, policymakers in Washington are scrambling to apply intellectual property (IP) laws and concepts in response. Indeed, just this month, the Senate Subcommittee on Intellectual Property held its second hearing on AI and its implications for copyright law. Congressional attention to copyright and AI matches a growing public interest in understanding how AI – and generative AI, in particular – uniquely affects what it means to be an author and how ownership of expression of ideas is determined.  Fundamentally, this is about the relationship of works generated from generative AI models (Output Works) to works used to train generative AI models (Input Works) and how U.S. copyright law applies to that relationship. This article begins with an overview of generative AI and copyright law with a focus on fair use doctrine. It then examines four schools of thought that have emerged to address the novelty of generative AI under copyright law. It posits some of the implications for each of these approaches for innovation and the growth of the generative AI industry. Generative AI and its Reliance on the Fair Use Defense  Generative AI refers to the…Copyright Fair Use Regulatory Approaches in AI Content Generation