Who Made It? Fair Use and AI

The Rise of AI in Creative Spaces

In an ever-changing world, the prevalence of artificial intelligence seems inevitable. While AI has some obvious benefits in making many processes more efficient, creatives have been raising the alarm around the use of AI for creative endeavors for the past couple of years. Just recently, there has been some pushback from movie critics regarding Oscar contender The Brutalist for its use of AI to perfect lead Adrien Brody’s Hungarian accent; so much so that the Oscars are considering changing its submission requirements so that filmmakers will have to disclose their use of AI.[1]

AI and Intellectual Property Litigation

As the use of generative AI becomes more mainstream with platforms like ChatGPT, X’s (formerly Twitter’s) Grok and Meta AI, a new frontier of intellectual property litigation looms. As of right now, there is pending litigation against non-generative and generative AI platforms including ChatGPT, Meta, Anthropic, and others for copyright infringement. The defendants in these cases have lodged the same defense: fair use.[2] 

Understanding Fair Use in AI

Fair use allows a person to use the creative works of another in good faith for limited transformative or comparative purposes. In determining whether a use is fair, the courts will conduct a fact-specific inquiry to determine whether the use of another’s creative material is transformative enough so as not to infringe on the original creator’s rights. So how does AI fit into the fair use doctrine?  AI companies are essentially attempting to assert that the use of copyrighted material to train their AI platforms is transformative enough to constitute fair use.

Key Cases Shaping AI and Fair Use

AI and Music Copyright: The Anthropic Case

In one case, for example, a host of the world’s top music publishers alleged that where the AI firm Anthropic used copyrighted song lyrics from popular songs like “Roar” by Katy Perry or “I Will Survive” by Gloria Gaynor to train its AI, it infringed on the copyright of the various music publisher plaintiffs. The plaintiffs alleged that the AI platform Claude would both replicate the lyrics of the copyrighted songs and use portions of the lyrics to generate new songs. The case eventually settled, and Anthropic asserted that it would instill “guardrails” in its program moving forward to prevent replication of original works.[3]

Legal Research and AI: The Ross Intelligence Case

In another case concerning non-generative AI, Ross Intelligence, Inc. trained its AI search engine by contracting with another company to answer a number of legal research questions that Ross said were drafted by its lawyers. The plaintiff, Thomson Reuters (a company that runs the legal research engine called Westlaw) asserted that the research questions were simply Westlaw’s headnotes copied and posed as a question to be answered by the contracting company.[4] Ross Intelligence asserted that their use of the headnotes was fair use. The court disagreed, finding that Ross’ use of the headnotes was not transformative enough to be considered fair use.[5] Thomson Reuters could be an early indicator of how the courts will analyze fair use and its implication on artificial intelligence. Specifically, it may be an early look into how fair use legislation will need reworked to be responsive to the rise of on-demand artificial intelligence.

Government Response: Updating Copyright Laws for AI

The Copyright Office and the USPTO have both shown that they are committed to updating their practices to accommodate the expansion of AI.[6] The Copyright Office has released an opinion that intellectual property legislation needs to be updated to be responsive to the rise of AI.[7] Specifically, the Office suggests that new legislation should be passed to protect all people from unauthorized digital replicas and to incentivize online service providers to remove unauthorized replicas. On the flip side, the Office has concluded that the use of AI to assist in the creation of human work can enjoy the same copyright protections already existing.[8]

How The Spencer Law Firm Can Help

As a business owner, it is imperative that you are able to keep up with the rise of technology to keep your business and branding modern. As the world keeps changing, at The Spencer Law Firm, we believe that protecting your brand and your original works is imperative. Give us a call at (713) 961-7770 to discuss how we can help you defend your copyright and trademark rights.

Citations

[1] Oscars Consider Requiring Films to Disclose AI Use After ‘The Brutalist’ and ‘Emilia Pérez’ Controversies

[2] See e.g. COMPLAINT AND DEMAND FOR JURY TRIAL in the United States District Court for the Middle District of Tennessee. Concord Music Group et al. v. Anthropic PBC, Case 3:23-cv-01092.

[3] Blake Brittain, Anthropic Reaches Deal on AI “guardrails” in lawsuit over music lyrics, Reuters (January 3, 2025) https://www.reuters.com/legal/litigation/anthropic-reaches-deal-ai-guardrails-lawsuit-over-music-lyrics-2025-01-03/

[4] On Westlaw, headnotes highlight and summarize the main ideas of the researched material.

[5] Thomson Reuters Enterprise Centre GMBH v. Ross Intelligence, Inc. No. 1:20-cv-613-SB (S.D. Del., Feb. 11, 2025).

[6] United States Patent and Trademark Office: Artificial Intelligence Initiatives

[7] Copyright and Artificial Intelligence, Part 1: Digital Replicas, A report of the Register of Copyrights, (July 2024)

[8] Copyright and Artificial Intelligence, Part 2: Copyrightability, A report of the Register of Copyrights (January 2025)