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The USPTO Wants to Know Your Thoughts on Artificial Intelligence

Artificial intelligence systems and fine arts in the future. Robot drawing a men portrait on whiteboard.

Men portrait from my portfolio. Istock image number: 113977453
By Laura Temme, Esq. on November 19, 2019 1:58 PM

The USPTO is asking for public comment on the impact of artificial intelligence on intellectual property law and policy. With just one month left for those interested to submit their thoughts, it's worth exploring some of the questions AI brings to the conversation surrounding intellectual property.

Can AI Be "Creative?"

Over the last several years, artificial intelligence programs have been taught to mimic the style of famous painters - creating "new" works that look like the real thing. But, who do we consider the author of these paintings? Can an algorithm exhibit creativity the way a human can? In the case of Naruto, the monkey who figured out how to take a selfie, the Ninth Circuit found that creative works need a human author to be copyrighted. In which case, does the developer of the algorithm own the painting? Or the person who inputs the data necessary to achieve the end result?

How Much Human Effort Do We Want to Require?

Earlier this year, Warner Music became the first record label to sign a record deal with an algorithm. Well, sort of. The label will use an algorithm created by Endel to create 600 short ambient tracks, like those white noise sleep playlists that have popped up on so many streaming platforms. But Endel's composer and head of sound design says many of the tracks were created "with a click of a button," and with very little human involvement. Even though copyright law doesn't require a certain amount of work for protection, the amount of human effort may eventually become an important consideration.

The USPTO is accepting written comments on this topic until December 16th, either via email at or by mail addressed to the Director of the U.S. Patent and Trademark Office.

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