AI and Licensing

To safely license copyrightable materials (like a photograph, a poem, software, or a musical work) for commercial use, the licensor needs to be sure that they have all of the necessary rights. With software, in particular, it is not uncommon to find third party-owned code embedded in a program. A licensor might have written the rest of the software program, but may not be able to license the program as a whole without a license from the third party (unless, possibly, the licensor is Google). Similarly, musical works may use samples that belong to third parties. In those cases, in order to license the work incorporating third party materials, the licensor needs to either obtain a license from the third party that permits a sublicense or must have a decent fair use argument for why a license is not needed.

Artificial intelligence introduces a different wrinkle. In August 2023, the DC Circuit ruled court ruled that work created by AI, without any human intervention, is not protected under U.S. copyright law. Only a person may hold a copyright; if the person did nothing other than run the program, the person didn’t actually author the work. It is still up in the air how much human intervention is enough to tip the scales toward authorship. In addition, it remains unsettled whether it infringes on copyright works to use them to train artificial intelligence.

As a result, licensing work that contains even just some AI-created materials may be risky. Licensees may wish to require a warranty in the license, under which the licensor promises that the licensed work does not contain any AI-created materials. For example:

“Licensor warrants and represents that the Work is Licensor’s original work and does not include, is not based on, and is not derived from any pre-existing, artificial intelligence-derived or produced, or third-party designs, trademarks, or copyrighted images.”