FAIR USE
The Fair Use Doctrine is a legal principle in U.S. Copyright Law that allows for limited use of Copyrighted Material without permission from the Copyright Holder. It’s an exception to the Copyright Holder’s Exclusive Rights, intended to balance those rights with the public interest in the free flow of Information and creative expression. The attempted misappropriation of the Intellectual Property Rights of Creators by AI Companies continues, and they are attempting to apply “Fair Use” as a justification to freely copy and exploit the work of the Original Creators.
PIRACY
We’re about to find out if the use of Gen AI is equivalent to copyright theft. In 2025, media and entertainment businesses are focused on whether the longstanding principle that content belongs exclusively to Copyright Holders, will be disrupted by the affirmative defense of “Fair Use” being deployed in the Courts by Artificial Intelligence (AI) Technology Companies. These companies use operating platforms that generate Creative Works based on a user’s prompts, known as Generative AI (Gen AI). Under U.S. Copyright Law, fair use is an affirmative defense to what would otherwise be Copyright Infringement.
Gen AI Companies, which are currently defendants in numerous Copyright Infringement Lawsuits, assert they don’t need permission from Media and Entertainment Companies (Copyright Holders) to train Gen AI platforms on Copyrighted Content owned by these companies. Gen AI Companies argue that the training constitutes Fair Use under the Copyright Law, and that Works generated by Gen AI platforms are NOT Derivative Works of the Copyrighted Content on which the platforms are trained. Over the coming months, there will be intense focus on decisions the Courts make regarding the merits of the arguments of Gen AI companies.
YOU’VE GOT TO BE A HUMAN TO REGISTER A COPYRIGHT
In a related matter, HUMAN AUTHORSHIP is now a requirement for Copyright Registration. A relatively recent decision by the US Copyright Office Review Board could have far-reaching implications for Works of Art created, in part, by Gen AI. On December 11, 2023, for the third time, the Review Board affirmed a refusal to register a Work of Art, partially created by Gen AI, concluding that the Work lacked the Human Authorship necessary to claim Copyright Protection. This decision is significant because the Review Board issued a written opinion analyzing the impact of Gen AI on Copyright Protection and continues a trend of Courts and the Copyright Office rejecting Copyright Protectionfor AI-generated works. If a Work contains too much Gen AI content, it could lead to a loss of Copyright Protection for the Work, either in whole or in part. Any copyright application that includes AI-generated content must disclose the percentage and source of such content. Failure to do so can lead to cancellation of the copyright registration and, consequently, loss of access to Federal Courts and the ability to seek statutory damages from infringers.
So, it’s currently a mixed bag. You’ve got to be an actual human being to register a Copyright, but it’s unclear whether the Courts will allow companies using Gen AI to make DERIVATIVE WORKS under the cover of Fair Use.
Welcome to the future and a constantly evolving area of the Law. Going forward the issues presented by Gen AI will challenge the Legal System and every Creator. Let’s answer your questions about Copyright Infringement, Fair Use and protect your Intellectual Property. Don’t hesitate to call me!