States Seek to Define Ownership of AI-generated Works in Absence of Federal Standard

A law passed in Arkansas last year establishes an ownership right in the output of an AI separate from the question of ownership under federal copyright law, according to an analysis by Mayer|Brown. This year, legislators in the Iowa House and Senate have introduced bills modeled on the Arkansas law, likewise including language expressly separating the ownership rights granted through the state law from any existing federal copyright or patent rights.

The Arkansas law grants ownership to “the person who provides the input or directive to the generative artificial intelligence tool,” provided that the content “does not infringe on existing copyrights or intellectual property rights.” It also provides that the “person who provides data or input to train a generative artificial intelligence model shall be the owner of the resulting trained model,” per Mayer|Brown, as long as the data used to train the model “is lawfully acquired” and there has not been a transfer of ownership.

Despite their novelty, the Arkansas law and prospective Iowa statute are potentially at risk of federal preemption. Under the 1976 Copyright Act, “all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship… are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.”

By refusing to take the case in Thaler, however, the Supreme Court left open the question of whether works generated by AI are works of “authorship” governed by the ’76 Act so long as “authorship” is defined as “human authorship.” As a result, it’s unclear whether the Arkansas and Iowa statutes would be preempted.

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Thaler involved an image produced by an AI system developed by computer scientist Dr. Stephen Thaler titled “A Recent Entrance to Paradise.” According to Thaler, the AI generated the image without any input or involvement by any human. In a 2019 application to the U.S. Copyright Office, Thaler sought to have the AI system he called the Creativity Machine declared the author of the work, and himself declared the copyright owner under the work-for-hire doctrine. The office twice declined to register the work on the grounds that, by Thaler’s own assertion, the work lacked human authorship. Thaler then sued the Copyright Office seeking to overturn its denial of protection but both the district court and Court of Appeals upheld the office’s ruling.

Neither state law claims to establish a copyright or circumvent existing federal intellectual property laws, per Mayer|Brown, but they do purport to establish ownership rights directly adjacent to these federal protections. Whether courts would deem the Arkansas and Iowa statutes as sufficiently distinct from federal copyright law to overcome preemption remains to be seen.

The states’ efforts to address ownership of AI-generated works nonetheless highlights the lack of a clear federal framework. Until Congress or the courts articulate a clear standard for the degree of human involvement necessary to warrant intellectual property protection—or, in the alternative, a distinct ownership regime for AI-generated works—Mayer|Brown advises creators and businesses to continue to monitor developments on both a federal and state level in order to best understand their rights and protect their works.