Introduction: The New Frontier of Ideas
Generative Artificial Intelligence (“Gen AI”)is now a part of our daily lives. It crafts essays for students, designs marketing copy for businesses, and creates award-winning art, forcing us to question fundamental concepts like creativity, authorship, and invention. What does it mean to create something when a machine does most of the work? Who is the inventor when an algorithm generates the breakthrough idea?
As this technology advances at an incredible pace, the legal system is racing to catch up. Courts and government agencies are applying laws written for a world of human creators to scenarios involving non-human intelligence, leading to some surprising and counter-intuitive outcomes for innovators and artists. Common assumptions about owning an idea are being turned on their head. Inventors and authors are expected to respect the “honor system” if Gen AI is used.
This article explores some of the most fascinating recent developments in intellectual property (“IP”) law. From robot inventors to AI-generated art to over relying on Gen AI, these real-world examples reveal truths that challenge what we think we know about who gets to own an idea in the 21st century.
An AI Cannot Be a Patent Inventor (For Now)
Under current U.S. law, an Artificial Intelligence system cannot be legally named as an inventor on a patent. This principle was cemented in the high-profile case involving an AI named DABUS (Device for Autonomous Bootstrapping of Unified Sentience). Its creator, Stephen Thaler, filed patent applications listing DABUS as the sole inventor, arguing the AI had independently conceived of the inventions.
The U.S. Patent and Trademark Office (USPTO) rejected the applications, and the courts, including the Federal Circuit in the case Thaler v. Vidal, have consistently sided with the USPTO. The core of their reasoning is that the Patent Act defines an inventor as an “individual,” which, based on legal precedent, refers to a natural person—a human being.
The Federal Circuit’s decision was unambiguous, stating:
“the Patent Act requires that inventors must be natural persons; that is, human beings”
While this ruling settles the question of AI as a named inventor, the U.S. Supreme Court has since denied certiorari, declining to hear the case and thereby cementing the Federal Circuit’s decision as the final word for the foreseeable future. However, the court explicitly noted it was not addressing “the question of whether inventions made by human beings with the assistance of AI are eligible for patent protection.” As AI becomes a more powerful tool in the innovation process, defining the line between an AI assistant and an AI co-inventor is the next major challenge for patent law.
Your AI-Generated Masterpiece Probably Can’t Be Copyrighted
Works created solely by Artificial Intelligence are not eligible for copyright protection in the U.S. The reason is simple: a copyright requires a human author, and the U.S. Copyright Office has maintained that AI-generated content lacks one.
This issue came to a head with Jason M. Allen’s artwork “Théâtre D’opéra Spatial,” a piece created using the AI image generator Midjourney that won an art competition. When Allen attempted to register the work for copyright, the U.S. Copyright Office rejected his application. The problem was not that he used AI, but that he refused to disclaim the parts of the work created by the AI. Despite the fact that Allen experimented with over 600 prompts to arrive at the final image, the Office determined that his contribution did not meet the threshold for human authorship.
In its decision, the Copyright Review Board explained its reasoning clearly:
“when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the ‘traditional elements of authorship’ are determined and executed by the technology—not the human user.”
The implication for creators is profound and surprising. Relying too heavily on generative AI as a creative partner, rather than as a tool under your direct control, could mean you don’t legally own the resulting work. The more autonomous the AI’s contribution, the weaker a human’s claim to authorship becomes.
Generative AI Can Be Confidently Incorrect
Generative AI models are capable of producing plausible-sounding but completely inaccurate information, a phenomenon often called “hallucination.” This is especially true when they are asked about events that occurred after their training data was collected.
A perfect example comes from the 2023 Supreme Court case Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, which involved a photograph of the musician Prince. The Court held that Andy Warhol’s stylized prints of the photograph were not fair use under copyright law and therefore infringed the photographer’s copyright.
When ChatGPT was asked to write a blog post about this decision, it completely bungled the facts. The AI confused Prince the musician with “Richard Prince,” another appropriation artist involved in separate copyright disputes. The AI produced a coherent-sounding but factually wrong legal analysis because its knowledge base was limited to pre-2021 events.
This reveals a critical limitation of many popular AI tools: they do not search the live internet for information. Instead, an AI like the free version of ChatGPT operates within the “walls of the pre-2021 data set on which it was trained.” It is guessing based on old patterns, not reporting on current events. The lesson is clear: human review and fact-checking are essential when using AI for research or content creation. As one analysis concluded, “The tech may be omnipresent, but it is not yet omniscient.”
Conclusion: Who Owns the Future?
The common thread weaving through these takeaways is that our legal framework for intellectual property, built for a world of human creators, is being stretched and challenged by the rapid advancement of technology. As AI, digital markets, and new technologies continue to evolve, the lines between tool and creator, original and copy, and fact and fiction will only become more blurred. These cases are not just legal curiosities; they are signposts pointing toward a future where our fundamental assumptions about creativity and ownership will be continually tested.
As AI becomes an even more integrated creative partner, who will we—and the law—consider the true author of an idea in the next decade?