As technology develops, the growing presence of Artificial Intelligence (AI) within our lives becomes more prominent. AI predicts what we want to watch on TV, what food we want to eat, and what we want to type. The predictive abilities of AI have begun to even encroach upon the creative space. The use of AI as a tool in arts and science is not new, however. Scientists have used the residual processing power from video game consoles to assist AI in processing models for the potential folded structures of proteins. What is new however is the use of AI to create a new product with little human input entirely.
This raises important questions in intellectual property (IP) (Particularly in the fields of patent and copyright law.) If an AI invents something useful or creates an expressive work, who will own the IP in that work? If the invention is patentable, who is the inventor? The AI or the creator or owner of the AI? Similarly, if an expressive work is copyrightable, who is considered the author? Answering these questions is essential in determining who will ultimately own the IP.
Thus far, the question of AI inventorship or authorship has hinged on the fact that such creations are a result of a non-human entity. To begin to understand how such creations from non-human entities are treated, we first look at how non-human authorship is treated by the courts. We will start at the beginning – before AI was considered an inventor.
Now, I wouldn’t call myself a sneakerhead by any definition of the phrase, but certain shoes will forever pique my interest. The classic Jordan 1 silhouette has captivated me since I saw Space Jam as a kid and became entranced with the MJ legend. For decades after that seed of appreciation was planted in my head as a child, I never thought twice about sneaker style. I was more of a chukka guy, to be honest.
Fast forward to Summer 2019: I’m at a thrift store in Greenpoint, Brooklyn. I’m browsing the shelves for a rare size 13 shoe that would be worth salvaging. I come across a pristine pair of Air Force Ones for $30. At that moment, my limited interests in sneakers burst open to include the entire Nike roster.
Fast forward a few more years: I’m a first-year law student reading about a devilishly controversial case involving another famous Nike sneaker.
If you were a child sometime in the last three decades, you’ve likely had some sort of a connection to the cultural juggernaut that is the Pokémon franchise. An intellectual property so well known that Microsoft Word has autocorrected my spelling of the word Pokémon three times now. My personal connection to the franchise has persisted throughout my life. As a seven-year-old, I scrounged together change to buy a pack of the trading cards at the local 7-11. Later in life, I almost got robbed in a park while playing Pokémon Go at 2 AM in 2016 (true story).
Most recently, I’ve begun to see Instagram ads for products not associated with Nintendo that draw from the vast pool of Pokémon nostalgia to push their products. One service in particular, called Pika Pika by Arianna, caught my eye. It’s a commission-based service that offers to draw your pet and insert them into a Pokémon card. The card looks like it could be used in the actual game. The picture of the pet is drawn in the style of a Pokémon. Typically, on every Pokémon card, there is a picture of the Pokémon and a list of abilities or moves that it can do. The abilities that are listed on the Pika Pika card are creatively adapted in accordance with your pet’s personality. I have two pets myself, and I’ve thought about using this service on more than one occasion.
Professor Cynthia Ho is the Director of the Intellectual Property Program at Loyola University Chicago School of Law. She teaches courses in Intellectual Property as well as Civil Procedure. She has made particular contributions in the area of international intellectual property, as well as patent issues involving biotechnology or health policy.
I had the pleasure of taking Professor Ho’s Civil Procedure class in my first semester and her Global Access to Medicine: A Patent Perspective class (based on a book she wrote) in my second semester. This semester, I’m excited to be in her Intellectual Property Law class and learning more about the world of IP.
I had a fairly clear idea when I came to Loyola University Chicago School of Law that I wanted to focus on patent law. Having a science background, it seemed like a natural fit given the intersection between patent law and science. However, my interests weren’t solidified until I read patent cases assessing the validity of a patented pancake recipe. You’ll have to learn a little bit about my childhood to understand why those interests solidified though.
A consistent motivating force throughout my life has been figuring out how things worked. As a kid, whenever I got bored with a toy, I would sneak tools from my dad’s toolbox and take it apart. I wanted to get a better understanding of how the toy worked. Knowing that I’d get a lecture on why I shouldn’t break my toys, I’d try to put them back together—often unsuccessfully. Nevertheless, the hunt for that forbidden knowledge was worth the lecture and one less toy. I needed to figure out how it worked, no matter the consequences.