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Document Type

Note

Abstract

In an era of technological revolution, artificial intelligence is shocking the legal field with its increasing popularity, power, and potential. The limits of property, personhood, and creativity are in question by both the public and the courts, leaving significant ambiguities in the law. Legal standards regarding the regulation of advanced technologies have raised unique and critical substantive questions for intellectual property rights, particularly that of trademarks, where the traditional purpose is source identification between consumers and goods.

Since the 1989 holding in Rogers v. Grimaldi, the use of trademarks for creative purposes, as a matter of First Amendment jurisprudence, has resulted in a near-perfect track record as an infringement defense. Questions have abounded as to who actually owns the property rights to an artificial intelligence generated work, and who gets to claim it as his own artful invention. This Note advances the position that, due to the ongoing circuit split regarding the infamous Rogers test, the law needs to establish clear boundaries as to ownership in artificial intelligence and once-and-for-all define what it means for a work to be “artistically relevant.”

It goes without saying that artificial intelligence will continue to transform the “trademark ecosystem” and that the law will need to innovate alongside it to keep up with market trends. Consumers must be able to identify artificial intelligence as its own “being” with its proper creators and sources—the source identifying purpose of a trademark—or intellectual property protection may begin to break down and face disincentives for registration in the first place.

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