Intellectual Property Liability for Businesses in the Age of AI: What New Liabilities Businesses Using AI Could Face and the Possible Methods of Self-Protection

The invention of Artificial Intelligence (“AI”) has triggered a wave of copyright and trademark litigation that will likely shape the intellectual property laws governing AI for the foreseeable future. Lawsuits against AI giants like Meta and OpenAI stand to declare popular uses of AI as actionable infringement as well as possibly reshape how copyright and trademark law view concepts, such as fair use and derivative works in the age of technology. Meanwhile, businesses are pushing forward rapidly with adopting AI and implementing its use in everyday functions. For many of these businesses, AI is a highly desirable but poorly understood technology, creating the possibility that businesses may be using AI in ways that lead to surprise lawsuits and penalties depending on the outcome of the cases currently pending. This note surveys many of the ongoing lawsuits alleging violations of authors’ copyright and trademark rights, explaining what claims have been brought and their significance for businesses if accepted by the courts. In particular, this note discusses the novel claims being brought, such as the claim that an AI model should itself be declared an infringing derivative work once a work has been uploaded to it without the author’s permission. After explaining the business impacts of these claims, this note suggests that businesses should seek to license any work they wish to upload into an AI model from the author, search for insurance providers willing to develop insurance against copyright and trademark infringement claims for improper AI use, and request specific liability-insulating features when commissioning a custom AI program from developers.