Category: Intellectual Property

The legal landscape around AI-assisted creative output is dynamic, but this much is clear as of mid-July?2025: AI and IP do NOT mix. Human creativity must drive the work for intellectual property protection to attach to the work.

The Court Says…

In Thaler v. Perlmutter (March?18,?2025), the D.C. Circuit ruled AI cannot be considered an author under U.S. copyright law. Authors are, by definition, human beings. Thus, the chimpanzee who paints cannot be considered an author; neither can your friendly AI bot. In this case, Dr. Stephen Thaler created an AI bot called the Creativity Machine. The Creativity Machine created a drawing, which Dr. Thaler submitted for copyright registration. He listed the Creativity Machine as the sole author of the piece with Dr. Thaler as merely the owner.

The Copyright Office denied the registration because the Copyright Act of 1976 requires that an author be human. Dr. Thaler asked the courts to reverse the Copyright Office’s decision.

The Court ruled that “The Creativity Machine cannot be the recognized author of a copyrighted work because the Copyright Act of 1976 requires all eligible work to be authored in the first instance by a human being.”

This is a ruling from a US Court of Appeals. Other US Courts of Appeals may differ in their opinions.

The next step, should Dr. Thaler choose to appeal and should they grant certiorari, would be the US Supreme Court.

Quick Analysis

This position is rooted in long-standing law. Never has an entity other than a human being been capable of becoming an “author.” Therefore, it stands to reason that a machine … an inanimate object … cannot be an “author.”

But wait. Apes are created by nature. Machines are created by human beings. While products of nature (like apes) cannot be, human beings CAN be “authors.” Therefore, does it make any sense to allow a machine … a human creation … to be an “author”?

Current Answer

The courts currently resoundingly say “NO.” An author is, and remains in the face of AI, a human being and only a human being. The creative spark for the work being copyrighted must contain a significant human element, and only that human-created part of the work can be protected by copyright.

For AI creations there is no protection.

This is a very active area of law. If you’re creating content using any AI machine and you want to protect that content, be sure to get legal advice as you proceed.

The Corporate Transparency Act (CTA) most … not all … U.S. and foreign entities to file a Beneficial Ownership Information Report with the Financial Crimes Enforcement Network (FinCEN), a bureau of the U.S. Department of the Treasury.. This filing has a deadline, and failing to meet their deadline can cost you fines of up to $500.00 per DAY that you are late.

If your business existed as of 1 January 2024, you must file your BOIR before 1 January 2025;

If your business was created or registered to do business in the USA during the calendar year 2024, you must file your BOIR within 90 days after you receive your actual or public notice that the creation or registration is effective.

If your business is created or registered to do business in the USA on or after 1 January 2025, you must file your initial BOIR within 30 days after receiving actual or public notice that the creation or registration is effective.

You do not have to file a BOIR if your business falls into an exemption. Exemptions include:

1 Securities reporting issuer
2 Governmental authority
3 Bank
4 Credit union
5 Depository institution holding company
6 Money services business
7 Broker or dealer in securities
8 Securities exchange or clearing agency
9 Other Exchange Act registered entity
10 Investment company or investment adviser
11 Venture capital fund adviser
12 Insurance company
13 State-licensed insurance producer
14 Commodity Exchange Act registered entity
15 Accounting firm
16 Public utility
17 Financial market utility
18 Pooled investment vehicle
19 Tax-exempt entity
20 Entity assisting a tax-exempt entity
21 Large operating company
22 Subsidiary of certain exempt entities
23 Inactive entity

Note that if your company is a tax-exempt entity (i.e., a nonprofit granted tax exemption under the IRS Code or a similar entity) or if yours is an entity in business to assist tax-exempt entities, you do NOT have to file a BOIR.

Your deadline is coming up. If you find you cannot, or don’t want to, for whatever reason, get this done yourself, I’m happy to help you … for the currently-below-market price of $169.00. You’ll need to provide me with some personal information (birth date, EIN or Social Security number … .but let’s do EIN … business and residential addresses) and a .pdf or .jpg of your state-issued photo ID (passport, driver’s license, tribal ID).

You can schedule a time to meet with me to get your BOIR filed for only $169.00 by clicking here.

I got this email from the USPTO today, and I pass it along to you.

Path to a Patent quarterly series restarts January 12

Is your New Year’s resolution to file a patent? The United States Patent and Trademark Office’s (USPTO) eight-part recurring Path to a Patent series covers everything from intellectual property (IP) basics, to patent searching, to what you’ll need to draft and submit your patent application. 

This free, virtual series, which is hosted by USPTO regional offices, starts January 12 (2023) with the Path to a Patent, Part I: IP basics and will run through March 16.

Public Domain Day (which is always January 1) 2023 is the date on which all copyright protection in works that enter the public domain in 2023 expires.

Public domain works are works that have been released into the public domain by the copyright holder or, as with Public Domain Day, by the law of the country in which the work was created. This means that you can use these works without worrying about copyright infringement. Entry into the public domain, however, does not relieve you of the requirement to cite your source; even when that source is in the public domain, if you fail to cite, you plagiarize … and plagiarism gets you into academic honesty troubles.

Works entering the public domain this year include the last of the Sherlock Holmes stories, “The Jazz Singer,” and “The Best Things In Life Are Free” … together with “I Scream, You Scream, We All Scream for Ice Cream!”

Always be sure to get permission from the copyright holder if you plan to use a work in a way that requires their permission.

If you have any questions about copyright law or the public domain, call us at 518-371-4599 or schedule an appointment with us here.

US copyright registration is done through the US Copyright Office. It is not done through the writers’ groups!! Yes, there is at least one writer’s group out there that you can register your work of authorship with, but that’s not copyright registration.

To actually register your copyright, you need to know a few things. First, you need to know what type of work of authorship this is. Is it a written work? A work of the visual arts? A musical work? A movie? Or is it some combination (movies contain music, for example).

Once you’ve got the type of work, you need to know who the author is. Maybe that’s you. Maybe it’s your employer. Maybe it’s someone else.

Then the Copyright Office’s registration bot leads you through a series of questions about the work and about the author … and about the speed with which you want the registration to process. Fair Warning: Unless you have some VERY specific reason, from a cost basis you do NOT want “special handling.” That raises your registration fee from less than $100 to well over $700. Don’t go there unless this work is on the courthouse steps being litigated.

After you’ve answered all of the Copyright Office’s questions, it’s time to pay them and submit your copies of the copyrighted work. They allow certain works to be electronically submitted; for others, you must mail two best copies to them. Yes, they give you a mailing label … which does not include postage. Also, remember to affix … as in staple or glue … the tracking tag to each copy you submit.

Once you ship the works off to the Copyright Office, you sit back and twiddle your thumbs until either you hear from the Office with questions for you or the registration certificate arrives in the mail. 

Put your registration certificate in a safe place. You’ll need it if you ever need to enforce your copyright.

Seems Canada is revamping its copyright laws. This is interesting, especially for visual artists in the collectors’ arena: the artist will be able to receive a portion of the sales proceeds from the sale of their works in some cases.

In most of the world, artists and authors receive royalties only for the first sale of their works or of authorized copies of their works (the “first-sale doctrine”). This means that once a work or authorized copy is sold, the artist or author has gotten his or her compensation for the work or authorized copy; the work is therefore free to be sold on the open market without bothering with paying again the artist or author.

This remains true in Canada (and in the rest of the world) for authors; you can still sell your copy of “Harry Potter” without paying J.K. Rowling a percentage of the sale price. Even a used bookstore can sell a used book without compensating the author, even if that copy of the book is a very collectable copy (a signed first edition, for example). But if artwork gets sold by a gallery or at auction, the artist cashes in if the sale is made in Canada.

Is this a good thing? That’s a “duh…yeah…” for the artist, especially for the collectable artist whose work sells for hundreds of thousands of dollars in the collectors’ market. If the artist is to receive a percentage of the sale (the Canadian group that represents artists, CARFAC, is pushing for a 5% royalty), the artist can end up profiting nicely from that work. But others may see this as the top of what can become a slippery slope. Why should artists and not authors benefit from this change? And, if authors also start to benefit, what happens when the law expands to the rare book collectors? Will they also have to pay a percentage to the author or the author’s estate until copyright expires?

Where does it end?

Understand, I’m all for artists and authors getting paid, and paid fairly, for their works of authorship; I’m just not convinced that this new law is the means by which to do that. Do I have another suggestion? Not really.

So we’ll wait and see what happens.