IP Tech Knowledgy

When drafting agreements, address who owns—or at least controls— content created by Artificial Intelligence (AI) built into any programming. Many agreements address how the parties divvy up ownership of creative work and other intellectual property each party brings to the relationship. Agreements also address who owns the IP and data created by either or both parties during the course of their relationship.  With AI becoming more prominent, agreements should also include provisions designating ownership or control of AI-generated materials to the correct party, and affirmatively assigning rights to that owner. This relates to data, creative work that could be protectable by copyright work such as artwork, music, or written work, and could extend to patentable inventions and trade secrets.  

A simple sentence added to the Intellectual Property section of an agreement could suffice to designate the control of the AI work, such as “Developed IP shall also include any works created by artificial intelligence as a byproduct of, in connection with, or related to the Services and this Agreement.” With this language, the parties have captured a new type of creative work and ideally cleared up future ambiguity.  An agreement should also use similar language to address data created by AI. If the ownership or control is more complex, the agreement should parse through which aspects of any output are owned by each party, and what one party might possibly need to license to another.  
 
AI-generated work needs special attention because it is not always treated as any other IP. Both copyright law and patent law only grant ownership to what a human creates, meaning that the byproduct may not be owned by anyone if the AI/computer created the design or the spark.  Nevertheless, between themselves, the parties can treat the output as if one party owns it and the other party’s rights are subordinate to the designated owner’s rights. If the AI generates some new process or information that would best be protected by keeping it a secret, someone needs to control that trade secret, and the agreement needs to incorporate that trade secret into the arrangements the parties have set up for other confidential information. 

Ned T. Himmelrich
410-576-4171 • nhimmelrich@gfrlaw.com