Why New AI Laws May Not Change United States Copyright Laws in the Future Since AI Has Been in Widespread Use in Software Systems For 30+ Years
- masonwimberley
- 7 hours ago
- 14 min read
Peter S. Vogel
Attorney at Peter S. Vogel, P.C.
ISSUE 17 | SPRING 2025 | AI |
This article will focus on the United States copyright laws but also describes related current laws for patents, trademarks, trade secrets, and copyrights (“Intellectual Property” or “IP”) to understand how IP was created using AI rather than human beings who claim to be the inventors or authors.
I. Intellectual Property (IP)
To set the stage for AI’s impact on IP, it is important to set out a baseline set of information regarding what IP is so the reader will best understand the impact of AI.
The origins of IP in the United States are in the 1789 Constitution Article I, Section 8, Clause 8:
[The Congress shall have Power. . .] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. . .¹
As a result, the United States Constitution governs the writings of authors, copyrights, and discoveries of inventors, including patents and trademarks.²
A. Copyrights
The 1976 Copyright Act replaced the 1909 Copyright Act and improved things a lot. Before the 1976 Copyright Act, each state and the District of Columbia had their own copyright laws separate the federal law.
In 1976, copyrights were simplified.³ Since that year, only federal copyright law exists in the United States.⁴ At the moment the author affixes their writing to a medium, like a pen on paper or a computer key creating a computer data, then the copyright is created, whether the author likes it or not. There is no obligation to file a registration with the Copyright Office.⁵ However, to receive statutory damages for copyright infringement, registration must be filed within ninety days of the first publication.⁶
A copyright must be registered before an author can file a federal lawsuit for infringement.⁷ Federal courts have exclusive jurisdiction⁸ for infringement claims.⁹
As part of the registration process, an author merely files a copy of their copyrighted works, along with a completed application and a nonrefundable filing fee.¹⁰ If the registration is for computer software that includes trade secrets, the Copyright Office allows redactions and limits the number of pages that can be submitted.¹¹
B. Patents
Patents, on the other hand, are inventions that are new, novel, and unique, and they must be filed within one year of invention in the United States.¹² Outside the United States, the rules about filing are related to the time of invention.¹³ In order to secure a United States patent, one must file a formal application which may or may not be granted.¹⁴
When filing a patent application, the inventor may seek assistance from a person who is registered with the United States Patent & Trademark Office (USPTO) or file the application on their own (pro se).¹⁵ Less than 60% of patent applications in the United States are accepted and granted.¹⁶ A granted U.S. patent is valid for 20 years from the application’s filing date.¹⁷ Inventors may also file related patents, such as continuations or new applications, to build upon the original invention.¹⁸
C. Trademarks
The USPTO regulates trademarks, which are categorized into 45 classes under the current edition of the Nice Agreement.¹⁹ To secure registration, a trademark inventor must select one or more classes where their mark does not create a likelihood of confusion with existing trademarks.²⁰
For example, I filed a trademark application a number of years ago for a Texas based CPA training program. There was a very similar trademark name for a dog obedience school in Wisconsin, but because there was no likelihood of confusion, my client received a registration for its trademark.
After filing a trademark application, if there is no conflict with an existing trademark, the Trademark Office makes the application public so that others can challenge it if they believe it conflicts with their existing rights.²¹
Service marks are also known as trademarks but are more for art like the Coca-Cola logo, a design that identifies the sources of services, than the name itself.²² Given the complexities of trademark law, it is advisable for U.S.-domiciled applicants to be supported by an experienced trademark professional.²³
If a trademark owner does not challenge infringement in a timely manner, they may lose the ability to enforce their rights due to the legal doctrine of laches.²⁴
D. Trade Secrets
A trade secret is a type of intellectual property that comprises formulas, practices, processes, designs, instruments, patterns, or compilations of information that have inherent economic value because they are not generally known or readily ascertainable by others and which the owner takes reasonable measures to keep secret.²⁵ In some jurisdictions, trade secrets are referred to as a specific type of confidential information that meet legal standards for protection.²⁶
Most states have adopted the Uniform Law Commission Uniform Trade Secrets Act.²⁷ Additionally, the 2016 Federal Defend Trade Secrets Act was created so that owners of trade secrets may file lawsuits in federal court.²⁸
Trade secrets are protected through private legal action under state laws and the federal Defend Trade Secrets Act (DTSA).²⁹ Additionally, the Economic Espionage Act of 1996 criminalizes trade secret theft, providing legal consequences for misappropriation.³⁰
II. History of Artificial Intelligence (AI)
Although the media has promoted AI in the past couple of years, in fact, most computer professionals believe that the field of AI was initially founded in 1956 at Dartmouth University and has been in wide-spread use ever since.³¹ However, most software companies did not promote AI features in a way that users knew or understood that AI was being used.
By way of example, the most common form of AI used in the past thirty years has been machine learning (ML), where computer software is trained by adding data to educate the software.³²
In 2025, Internet users rely on search engines such as Google, Bing, and other platforms to find information online. Every user adds data with each search, and over time, because of ML, the search engine knows what the user seeks or which URL they want to visit and review.³³
The foundation of the Internet began in 1958 following Russia’s launch of Sputnik in 1957, which prompted the creation of the Defense Advanced Research Projects Agency (DARPA) for United States military purposes.³⁴ Much like the old days before Microsoft Windows in 1985, using computers was more of challenge since computer users needed to know and understand Disk Operating System (DOS) commands.³⁵ With the advent of Windows computer users could use a mouse with graphics rather than having to know all the complex DOS commands.
Until November 30, 2022, when OpenAI introduced ChatGPT,³⁶ only people who worked in the Information Technology (IT) industry worked with AI and ML. The widespread publicity led to 100 million customers by January 2023, and that changed everything.³⁷ Since then, AI has been headline news every day.
A. AI at the Copyright Office
As early as 1965, the Copyright Office began questioning the use of software to create copyrighted works and issued a report including this statement:
The crucial question appears to be whether the “work” is basically one of human authorship, with the computer merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.³⁸
After the 1976 Copyright Act, in 1978, the National Commission on New Technological Uses of Copyrighted Works (CONTU) issued its Final Report which had been established by Congress:
[A]s part of an effort to revise comprehensively the copyright laws of the United States
. . . concerning those changes in copyright law or procedure needed both to assure public access to copyrighted works used in conjunction with computer and machine duplication systems and to respect the rights of owners of copyrights in such works, while considering the concerns of the general public and the consumer.³⁹
CONTU addressed these issues and made recommendations in the Final Report and specifically in Chapter 3, “Computers and Copyrights.”⁴⁰
Because of the dramatic increase in the use of AI in 2022, on August 30, 2023, the Copyright Office issued the following Notice in the Federal Register about artificial intelligence and copyright:
The United States Copyright Office is undertaking a study of the copyright law and policy issues raised by artificial intelligence (‘‘AI’’) systems. To inform the Office’s study and help assess whether legislative or regulatory steps in this area are warranted, the Office seeks comment on these issues, including those involved in the use of copyrighted works to train AI models, the appropriate levels of transparency and disclosure with respect to the use of copyrighted works, and the legal status of AI-generated outputs.⁴¹
Following the NOI in July 2024, the Copyright Office issued its Copyright and Artificial Intelligence, Part 1: Digital Replicas Report in which the Register of Copyrights stated in the Foreword:
One of the areas affected is intellectual property. Copyright issues in particular have risen to the forefront, due to their visibility, immediacy, and relevance to the average person. By the fall of 2022, millions of Americans were utilizing generative AI systems and services to produce an astonishing array of expressive material, including visual art, text, and music. Almost weekly, tremendous strides have been announced in the technology’s capabilities. Artists have harnessed the power of AI to find new ways to express themselves and new ways of connecting with audiences. At the same time, AI-generated deepfakes have proliferated online, from celebrities’ images endorsing products to politicians’ likenesses seeking to affect voter behavior. Over the past year or so, the resulting debates have intensified, with enthusiasm about the promise of extraordinary technical potential tempered by concern about the impact on individuals’ livelihoods and reputations.⁴²
The Copyright and Artificial Intelligence, Part 1 Digital Replicas Report stated that there were approximately 1,000 responses from individuals to NOI. “The majority advocated for the enactment of new federal legislation. The scope, duration, and assignability of the right to be provided, as well as its relationship to existing state laws, were the subject of greater disagreement.”⁴³
As well, the Federal Trade Commission submitted a response to the NOI, stating: “The FTC is empowered under Section 5 of the FTC Act to protect the public against unfair methods of competition, including when powerful firms unfairly use AI technologies in a manner that tends to harm competitive conditions.”⁴⁴
It explained that it is empowered to protect the public against deceptive and unfair uses of AI technologies that harm competition, and “there is no AI exemption from the laws on the books.” According to the FTC, the use of a digital replica that mimics an individual’s voice and likeness might qualify as an unfair method of competition or an unfair or deceptive practice, particularly if it “deceives consumers, exploits a creator’s reputation or diminishes the value of her existing or future works, reveals private information, or otherwise causes substantial injury to consumers.⁴⁵
In January 2025, the Copyright Office issued its Copyright and Artificial Intelligence, Part 2: Digital Copyrightability Report which updated the number of responses to the NOI in the Preface:
[W]e received more than 10,000 comments representing a broad range of perspectives, including from authors and composers, performers and artists, publishers and producers, lawyers and academics, technology companies, libraries, sports leagues, trade groups and public interest organizations, and even a class of middle school students. Comments came from all 50 states and from 67 countries. That valuable and extensive input, supplemented by additional Office research and information received from other agencies, forms the basis for the discussion and recommendations in this Report.⁴⁶
The Copyright and Artificial Intelligence, Part 2: Digital Copyrightability Report focuses on AI and “addresses the copyrightability of outputs generated by AI systems. It analyzes the type and level of human contribution sufficient to bring these outputs within the scope of copyright protection in the United States[]” since:
. . . of the more than 10,000 comments the Office received in response to its Notice of Inquiry (“NOI”), approximately half addressed copyrightability. The vast majority of commenters agreed that existing law is adequate in this area and that material generated wholly by AI is not copyrightable.
Commenters differed, however, as to protection for generative AI outputs that involve some form of human contribution. They expressed divergent views on what types and amounts of contribution could constitute authorship under existing law. Many also stressed the desirability of greater clarity in this area, including with respect to the use of AI as a tool in the creative process.⁴⁷
The Digital Copyrightability Report also highlights the definition of copyrightability under the 1976 Copyright Act while outlining the Copyright Office’s future priorities regarding AI and copyright.
B. Copyright AI Lawsuits
The Copyright and Artificial Intelligence, Part 1: Digital Replicas Report explained in the Introduction:
In April of 2023, a new song featuring the voices of Drake and The Weeknd drew over fifteen million views on social media and six hundred thousand listens on Spotify. Footnote 3 Yet neither artist was aware of the song before its release, because the vocals were unauthorized, AI-generated replicas.
The viral hit “Heart on My Sleeve,” commonly referred to as the “Fake Drake” song, is a high-profile example of a burgeoning subgenre of sound recordings using generative AI systems to create vocals that can pass for those of a favorite artist. Vocal tracks are merely one form of increasingly realistic replicas of individuals’ voices, images, and artistic styles. In a short period of time, generative AI technology has become so sophisticated, and so accessible, that minimal expertise is required to rapidly produce such replicas. On social media and other internet platforms, their volume has skyrocketed.⁴⁸
The Copyright and Artificial Intelligence, Part 2: Digital Copyrightability Report states:
For a work created using AI, like those created without it, a determination of copyrightability requires fact-specific consideration of the work and the circumstances of its creation. Where AI merely assists an author in the creative process, its use does not change the copyrightability of the output. [] At the other extreme, if content is entirely generated by AI, it cannot be protected by copyright.⁴⁹
Of course, there are many other cases in federal court challenging AI and Copyright laws, but these cases cited in the Reports highlight key ongoing litigation.⁵⁰
C. U.S. House of Representatives
On December 1, 2024, the Speaker of the United States House of Representatives issued its 273-page House Bipartisan Task Force on Artificial Intelligence,⁵¹ which includes much more than just intellectual property law, but also AI issues in these fourteen areas:
1. Government Use
2. Federal Preemption of State Law
3. Data Privacy
4. National Security
5. Research, Development, and Standards
6. Civil Rights and Civil Liberties
7. Education and Workforce
8. Intellectual Property
9. Content Authenticity
10. Open and Closed Systems
11. Energy Usage and Data Centers
12. Small Business
13. Agriculture
14. Healthcare
15. Financial Services⁵²
Of course, the House Bipartisan Task Force on Artificial Intelligence is not a report on laws that are guaranteed to be enacted, given the legislative process of the United States Congress, but rather on what legal issues about AI the United States Congress should consider.⁵³
III. CONCLUSION
Of course, it is anyone’s best guess what Congress will do about creating new AI laws regarding copyright, but whatever the new laws are, they will be presented to the United States Federal District judges first. Appeals from those district judges will be appealed to the United States Circuit Courts of Appeal in the future and, at some point, the United States Supreme Court. However, no one knows how the United States Courts will deal with the new AI copyright laws.
In 2023, the think tank of the United States Supreme Court, also known as the Federal Judicial Center, issued An Introduction to Artificial Intelligence for Federal Judges.⁵⁴ The report opens with the “Four Questions Every Judge Should Ask About AI” and the sentiment that “AI is not a single piece of hardware or software, but rather, a constellation of technologies that gives a computer system the ability to solve problems and to perform tasks that would otherwise require human intelligence.”⁵⁵
Here are the Four Questions:
Judges must understand how AI works, its applications, its implications for the fact-finding process, and its risks. They should be able to answer the following four questions in context:
1. How is AI being used in court or to inform judicial decisions?
2. Does the fact finder understand the AI’s strengths, limitations, and risks, such as bias?
3. Is the AI application authentic, relevant, reliable, and material to the issue at hand, and is its use or admission consistent with the Constitution, statutes, and the Rules of Evidence?
4. Has an AI algorithm, a human, or some combination of the two made “the judicial decision,” and, in all cases, has that decision been documented in an appropriate and transparent manner allowing for judicial review and appeal?⁵⁶
Only time will tell, so it is critical that the courts are ready for AI in future copyright laws.
Suggested Citation: Peter S. Vogel, Why New AI Laws May Not Change United States Copyright Laws in the Future Since AI Has Been in Widespread Use in Software Systems For 30+ Years, ACCESSIBLE LAW, Spring 2025, at 1.
Sources:
* Peter Vogel is a Dallas-based attorney with over 30 years of experience. He advises clients across sectors in IT, eCommerce, cybersecurity, and emerging technology like AI, and serves as a mediator and arbitrator in complex technology disputes.
[1] U.S. Const. art. I, § 8, cl. 8.
[2] Id; In re Trade-Mark Cases, 100 U.S. 82, 97–98 (1879) (stating federal trademark legislation is authorized through the Commerce Clause of the U.S. Constitution.).
[3] H.R. Rep. No. 94–1476, at 47 (1976).
[4] Id.
[5] 17 U.S.C. § 102(a).
[6] 17 U.S.C. § 412.
[7] Id.
[8] Jurisdiction is when a court has the power and authority to apply the law or make judgments in a case. Jurisdiction, Black’s Law Dictionary (12th ed. 2024).
[9] 28 U.S.C. § 1338(a).
[10] Copyright Basics, U.S. Copyright Off. 1, 5 (2021), http://copyright.gov/circs/circ01.pdf.
[11] 17 U.S.C. § 412; 37 C.F.R. § 202.20(c)(2)(viii)(A) (1986).
[12] 35 U.S.C. §§ 102–03; Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284 (2011).
[13] 35 U.S.C. § 184.
[14] 35 U.S.C. § 111.
[15] Applying for Patents, USPTO, https://www.uspto.gov/patents/basics/apply (last visited Feb. 19, 2025).
[16] See U.S. Patent Statistics Chart Calendar Years 1963-2020, USPTO, https://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm (last visited Feb. 19, 2025).
[17] Applying for Patents, supra note 14.
[18] Id.
[19] Nice Agreement current edition version - general remarks, class headings and explanatory notes, U.S. Pat. and Trademark Off.,https://www.uspto.gov/trademarks/trademark-updates-and-announcements/nice-agreement-current-edition-version-general-remarks (last visited Feb. 19, 2025).
[20] 15 U.S.C. § 1052(d).
[21] Approval for publication, USPTO, https://www.uspto.gov/trademarks/basics/approval-publication (last visited Feb. 19, 2025).
[22] 15 U.S.C. § 1127; Trademark FAQs, USPTO, https://www.uspto.gov/learning-and-resources/trademark-faqs.
[23] See Do I need an attorney?, USPTO, https://www.uspto.gov/trademarks/basics/do-i-need-attorney (last visited Feb. 19, 2025).
[24] Henry J. Weiner, You Snooze, You Lose: The Doctrine of Latches in Trademark Enforcement, 9 State Bar of Wis. Bus. L. (2017) (“A laches defense claims that the plaintiff has delayed bringing an action for such a long period of time that the defendant party has been prejudiced”).
[25] 18 U.S.C. §§ 1839(3), (5)(B).
[26] Vivian Desmonts & Alexis Augustin, Confidential information, know-how and trade secrets: The importance of definition in valuation, Gowling WLG (Sept. 12, 2023), https://gowlingwlg.com/en/insights-resources/articles/2023/distinction-confidential-information-know-how#_ftn1.
[27] See Trade Secrets Act, Unif. L. Comm’n, https://www.uniformlaws.org/committees/community-home?communitykey=3a2538fb-e030-4e2d-a9e2-90373dc05792 (last visited Feb. 19, 2025).
[28] 18 U.S.C. §§ 1831, 1836(b).
[29] Trade secrets/regulatory data protection, U.S. Pat. and Trademark Off., https://www.uspto.gov/ip-policy/trade-secret-policy (last visited Feb. 19, 2025).
[30] Id.
[31] Andreas Kaplan & Michael Haenlin, Siri, Siri, in my hand: Who’s the fairest in the land? On the interpretations, illustrations, and implications of artificial intelligence, 62 Bus. Horizons 15, 19 (2018), https://www.sciencedirect.com/science/article/pii/S0007681318301393?via%3Dihub.
[32] See Sara Brown, Machine learning, explained, MIT Mgmt. Sloan Sch. (Apr. 21, 2021), https://mitsloan.mit.edu/ideas-made-to-matter/machine-learning-explained#:~:text=Supervised%20machine%20learning%20models%20are,most%20common%20type%20used%20today.
[33] Kevin Rowe, How Search Engines Use Machine Learning: 9 Things We Know For Sure, Search Engine Journal (Aug. 13, 2021), https://www.searchenginejournal.com/ml-things-we-know/408882/.
[34] About DARPA, Def. Advanced Rsch Projects Agency, https://www.darpa.mil/about (last visited Mar. 9, 2025); Barry M. Leiner et al., Brief History of the Internet, Internet Soc’y (1997), https://www.internetsociety.org/wp-content/uploads/2017/09/ISOC-History-of-the-Internet_1997.pdf.
[35] Microsoft Windows, Britannica, https://www.britannica.com/technology/Microsoft-Windows (last visited Mar. 9, 2025).
[36] Bernard Marr, A Short History of ChatGPT: How We Got To Where We Are Today, Forbes (May 19, 2023, 1:14 A.M.), https://www.forbes.com/sites/bernardmarr/2023/05/19/a-short-history-of-chatgpt-how-we-got-to-where-we-are-today/.
[37] Dan Milmo, ChatGPT reaches 100 million users two months after launch, The Guardian (Feb. 2, 2023, 3:46 PM), https://www.theguardian.com/technology/2023/feb/02/chatgpt-100-million-users-open-ai-fastest-growing-app?CMP=share_btn_url.
[38] 68 U.S. Copyright Off. Ann. Rep. 5 (1965).
[39] 1979 U.S. Dep’t of Com., Stanley H. Fuld, Final Report of the July 31, 1978 National Commission on New Technological Uses of Copyrighted Works, Libr. of Cong. Copyright Off., 1979, at 1.
[40] Id. at 9–46.
[41] Notice of Inquiry, 88 Fed. Reg. 59942, 59948 (Aug. 30, 2023).
[42] U.S. Copyright Office, Foreword to Copyright and Artificial Intelligence Part 1: Digital Replicas, (2024) [hereinafter Digital Replicas].
[43] Id. at 6.
[44] Id. at 18 n.110.
[45] Id. at 18.
[46] U.S. Copyright Office, Preface to Copyright and Artificial Intelligence Part 2: Copyrightability, (2025) [hereinafter Copyrightability].
[47] Id. at ii.
[48] Digital Replicas, supra note 42, at 1 (report citing other sources in its footnotes).
[49] Copyrightability, supra note 46, at 2 (report citing other sources in its footnotes).
[50] Id. at 7–11; Digital Replicas, supra note 42, at 8–21.
[51] 118th Cong., Bipartisan Task Force Report on Artificial Intelligence (2024).
[52] Id.
[53] Id. at v.
[54] James E. Baker et al., Fed. Jud. Ctr., An Introduction to Artificial Intelligence for Federal Judges, at 1 (2023).
[55] Id. at 5.
[56] Id. at 6.
