Copyright-Free Sandbox: Implications of AI-Generated Content

by Dennis Crouch

Conventional wisdom in copyright law has been to presumptively treat all online content as protected by copyright. This approach has made sense because of the low originality standard for copyright protection.  The result then has been that users would focus on whether they have a license; whether the intended use is a “fair use;” and (perhaps) whether the copyright holder is likely to discover the infringement and attempt to enforce their rights.

However, our digital landscape is experiencing a major upheaval with to the proliferation of synthetic works that likely do not meet the criteria for copyright protection. These works primarily fall into two main categories: (1) those lacking the necessary originality for copyright eligibility, such as raw data or certain surveillance camera footage; and (2) those created without direct human authorship, as with content generated by AI systems, often called GenAI.

The existing legal framework requires human creativity and ingenuity as the foundation for originality. Yet, AI systems are generating content at an unprecedented scale, and the volume of synthetic creations has likely already exceeded that of human-originated works. In the upcoming years, we can expect the number of synthetic creations to continue exponential growth. While some of this content may lack originality, a significant portion could easily meet the originality standard established in Feist and similar cases, if not for the absence of a human author.

This emerging copyright-free realm poses both opportunities and challenges. The prospect of freely accessing and building upon an expanding pool of non-copyrighted material without legal ramifications offers a unique freedom. This liberty to transform AI-generated works into new creations could potentially drive innovation and further creation at an accelerated pace. However, a challenge arises in determining to what extent these uncopyrighted synthetic works are discernible from copyrighted counterparts. If my forecast holds — that the majority of works in numerous fields will soon be synthetically generated — it might become prudent to reconsider shifting the burden back onto copyright claimants to explicitly mark their works.

This potential future holds many uncertainties. One question is whether the individuals behind  AI-generated works could leverage other legal mechanisms, like contracts, to safeguard their interests. Or, will the courts follow old rules prohibiting the use of contract to limit distribution of otherwise publicly available uncopyrighted content.

29 thoughts on “Copyright-Free Sandbox: Implications of AI-Generated Content

  1. 5

    I wish we could say what we all think out loud. And until we do, the Bible I believe has made our problems. We all matter. We are all the same. My Casa YOU Casa.
    Everyone deserves a place to call home.

  2. 4

    From a copyright law perspective, is an AI generated news report or other factual document that much different from the existing practice of human authors collecting facts on a subject from various prior copyright protected sources and independently reorganizing and expressing some of those facts in a different manner?

    1. 4.1

      From a copyright law perspective, your focus on facts just does not apply.

      1. 4.1.1

        In the United States, facts by themselves are not protected by copyright. mere collection of data is not enough. The arrangement and selection of data must be sufficiently creative or original. A sufficiently creative and/or original arrangement or selection of data can be protected as a compilation by copyright, but the factual content will not be. See, e.g., Feist Publications, Inc. v. Rural Telephone Service Co., 499 U. S. 340 (1991)


          Did anyone ever wonder WHY facts aren’t protectable by copyright? After all, don’t we want to encourage the creation and memorialization of new facts? Shouldn’t we reward the fact-creators and the fact-memorializers with expansive long-lasting monopolies to promote more of such behavior?

          Sunday Funday.


          “facts by themselves”…

          Exactly my point.


          Paul, let me point out (again), the larger context here in the innovation protection of products of AI (and especially generative AI), in that no real human can claim inventorship or authorship (in part or in whole).

          Some want to say “only a t001,” but even if that position were to be taken, the lack of human AS output creator must render such output at the same level of “fact” for innovation protection purposes — or even more broadly eviscerating, as obvious.”

          The other option: and the one to which “generative” plays the role of the Simean in the Simean Selfie case, is that the output IS creative (and not just fact-equivalent or obvious), but that such is ALSO not real person derived, and thus falls outside of US innovation protection.

          My consistent position on this goes back YEARS now.

          It is well beyond time that my urgings be heeded.


            “ products of AI (and especially generative AI)”

            Surely you meant to say ONLY (so-called) “generative AI” (with no human input).

            If there is human input into the final product then there is no reason that the resulting product would be any less copyrightable (assuming other usual conditions are met) than any other product produced by a human (or humans) in conjunction with tools or animal assistants.

            This brings us back to the question of what the heck (and how much) these “independent” “generative AI” “artists” (LOL) are actually producing ON THEIR OWN that is oh-so-worthy of everyone’s attention and which will “soon” (LOL) be eclipsing all of history’s human created content.

            But hey let’s just ignore math and facts and jump on this propaganda bandwagon.


              I suppose that this is as close that you can come to a substantive reply…. (your insu1ts below aren’t even close – as I had already noted).

              So let me address your quips:

              Surely you meant to say ONLY (so-called) “generative AI” (with no human input).

              No, I meant what I stated. Clearly, the generative AI is an easy call. But even beyond that, it may well be a discussion worth having when an item of output is clearly not an intended result such that “using as a t001” may not apply.

              As to, “… than any other product produced by a human (or humans) in conjunction with tools or animal assistants.” recall that the Simian Selfie case was NOT even an AI case, so no protection — even for human t001s — is not a given.

              Now also, in regards to ‘produced by humans,’ that too is not a given (see the old Spirograph cases).

              As to your TANGENT of, “that is oh-so-worthy of everyone’s attention and which will “soon” (LOL) be eclipsing all of history’s human created content.” – you show your rather silly avoiding past discussions in that NO ONE questions the level of output rivaling actual real person created items that do merit innovation protection.

              You make the rather p00r mistake of inserting your feelings, and then doubling down as if those feelings had any legal impact whatsoever.

              They do not.

              As to your last quip of, “But hey let’s just 1gn0re math and facts and jump on this propaganda bandwagon.” you indulge yourself in your old habits of projection while making errors: to wit, YOU are the one 1gn0ring math (as it being applied math), and YOU are the one inserting propaganda.

              Thus, your feeble attempt is thoroughly rebuffed.


                “recall that the Simian Selfie case was NOT even an AI case”

                I wasn’t referring to that case. I was referring to humans creating copyrightable matter that was produced using tools, wherein the tools included non-human animals.

                You are familiar with art history, right? Sure you are.

                1. Try again – you have misunderstood the Simian Selfie reference, as well as missed the Spirograph cases reference.

                  Your ‘position’ has been refuted.


          Under copyright law a work of “authorship” means a human being. A person, not a machine. At least that was my conclusion 30 years ago when i wrote a paper about it.

          There are also convincing papers of old that software was granted copyright protection because it was just there at the time, i.e., historical circumstance. Does windows 95 really need 100+ years of copyright protection to reward the author/owner ?

          Probably time for something sui generous for both. 20 years for software and 10 years for AI generated works?


            10 years….

            To whom?

            (revisit the case of the Simian Selfie, or, for patents, the slave owner)

  3. 3

    “AI systems are generating content at an unprecedented scale, and the volume of synthetic creations has likely already exceeded that of human-originated works”

    Remind me, did the AI systems magically appear out of thin air, or were they created by humans?

    1. 3.1

      So let real people think up what is written, thought up,and invented as the Constitution on patents reads.

    2. 3.2

      Remind me of the point that you are attempting — given that we are talking about generative AI, and those people you may be referencing are NOT inventors/authors of the outputs.

      1. 3.2.1

        “we are talking about generative AI”



          At least above you had something – even it but be feeble.

          Here? Meh.

  4. 2

    Back when DABUS first graced the blogs, I have been calling for such discussions.

    1. 2.1

      Should we hold our breath waiting for you or Dennis to say something interesting that amounts to more than salivating and spreading b.s. about the merits of computer-generated doo doo?

      1. 2.1.1

        I certainly have said many things of interest.

        You – on the other hand – have a definite difficulty actually engaging on the merits.

        But you be you.


          “I certainly have said many things of interest”

          I guess it’s true that “bizarre” , “laughable wrong” or “incomprehensible” comments can sometimes be “interesting”. But that’s not what we’re talking about here.


            What YOU may be attempting to talk about is the very adjectives that you would project.

            Not surprising — at all — given your number one tactic of

            But you be you.

  5. 1

    “ AI systems are generating content at an unprecedented scale, and the volume of synthetic creations has likely already exceeded that of human-originated works.”

    Do the math for us.

    1. 1.1

      It’s a blog and that’s an estimate.

      It is less important that it be explicitly correct (at this exact moment) than it is to understand the context of the trends (trends, by the way Malcolm, that include the record — by far — of adoption and use, as I pointed out to you).

      But you be you.


      1. 1.1.1

        “It is less important that it be explicitly correct”


        Oh, I can see that. I’m not looking for hard numbers. Maybe just a rough outline of the base assumptions being relied on.


          You say that you see that, but then you turn around and 1gn0re the rest of my post….



            My computer (a POWERFUL ELECTRONIC BRAIN!) told me that periodically mocking you is a very very small but still important part of humanity’s pathway to universal prosperity.


              That you think that your posts rise to the level of mocking me is actually quite humorous — in a tip of Mount

              kind of way.

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