Tag: Artificial Intelligence

Can AI Prompting Satisfy the Copyright Office’s Human Authorship Requirement?

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After the Supreme Court declined to hear the case Thaler v. Perlmutter, it appears settled that AI “cannot be the recognized author of a copyrighted work.”1 But to what extent can a human obtain copyright protection for a work they generated using AI? Allen v. Perlmutter, a case pending in the District of Colorado, may provide guidance.2

The plaintiff, Jason Allen, used an AI system called Midjourney to generate a work he titled “Théâtre D’opéra Spatial,” which won an award at the 2022 Colorado State Fair’s annual fine art competition.3 To generate the image, Allen claims to have prompted Midjourney “at least 624 times.”4 Allen then used Adobe Photoshop to “beautify and adjust the various cosmetic details/flaws/artifacts, etc.”5 Finally, he “upscal[ed] the image using Gigapixel AI” to arrive at the final product.6

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Advertising Alert: Use Caution When Advertising Your Product’s Artificial Intelligence (AI) Features

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Artificial Intelligence (AI) is rapidly developing, and marketers are eager to tout the benefits of new AI features incorporated into their products. But as advertising of new AI features becomes more common, legal scrutiny around the substantiation and privacy implications of AI claims is also intensifying, as evidenced by the National Advertising Division’s (NAD) and Children’s Advertising Review Unit’s (CARU) Case #7485 reviewing Dorel Juvenile Group’s advertising for the Maxi-Cosi Sibia Bassinet and Starling Smart Bassinet both featuring the “CryAssist” AI technology.

The Advertising Claims

Dorel’s bassinets at issue use “CryAssist,” a feature marketed as using AI to “translate your little one’s cries, letting you know if they might be sleepy, fussy, gassy, agitated, or hungry.” Other prominent claims included assurances that “everyday conversation [is] kept private,” that “cries and cry data [are] kept anonymous and encrypted on our cloud,” and that all response-based features are “optional, ensuring control is always in your hands.” These claims are appealing to new parents but also raise questions about accuracy, privacy, and compliance with children’s data protection laws.

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Hoisting Scammers with Their Own Petard with the UDRP

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With the widespread availability of domain registration and hosting services and the advent of low-cost generative artificial intelligence (“AI”) software, the creation of fraudulent websites has never been easier—or more convincing. With little more effort than a few prompts of an AI program, scammers are able to quickly set up seemingly legitimate websites with text, images, and even video that can look and sound like the real thing. Online consumers, even those savvy enough to recognize your typical email phishing scam, may be fooled by professional-looking websites imitating existing businesses and organizations for less than savory reasons.

For brand owners, the consequences of these imitators can be myriad, including a loss of brand control, irate consumers looking for someone to blame, and ultimately a hit to your bottom line. Indeed, according to the FBI’s 2023 Internet Crime Report, Americans reported over $7.5 billion in losses stemming from intellectual property-related cybercrimes in 2023, up from 2022. Adding to this problem is the fact enforcing your rights against scammer sites can be costly and time-consuming. Scammers themselves are often anonymous and unsurprisingly unlikely to make themselves readily identifiable or easy to track down. Domain registrars and web hosts may require brand owners to navigate byzantine reporting channels in order to flag problematic conduct. And the resources required attempting to litigate every offending domain in court can make it an untenable option for many.

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USPTO Embracing New Possibilities with AI

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While the legal industry is typically not known as being cutting edge when it comes to adopting innovative technologies, the U.S. Patent and Trademark Office (USPTO) is taking big steps forward on seeing whether artificial intelligence (AI) may be used during patent and trademark examination to create greater efficiency and consistency with respect to certain routine, high-volume tasks. AI, a technology that refers to “smart” machines that simulate human intelligence, is being examined in many industries to potentially eliminate redundant and routine tasks, and the USPTO is trying to determine whether AI is right for it. Does this mean that future USPTO examiners will be more like C3PO? No. But AI could handle more-routine tasks, which would allow examiners to focus on more-substantive matters related to the examination of trademark and patent filings.

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