Courts Weigh AI Copyright as Lawmakers Turn to Publicity Rights
Recent US court decisions have affirmed that AI cannot be an author and that training on copyrighted works may be fair use, prompting a legislative shift toward right-of-publicity laws to protect artists.
US courts continue to establish that works generated solely by AI lack the human authorship required for copyright protection, as affirmed by the D.C. Circuit in Thaler v. Perlmutter. At the same time, the use of copyrighted works to train AI models is being tested under the fair use doctrine, with some early rulings suggesting it may be permissible where the AI's output does not create a market substitute for the original content.
This legal uncertainty creates significant risk for both AI developers and content owners. Major rights-holders, including the RIAA, have filed high-profile infringement suits against AI music platforms like Suno and Udio, alleging unlawful copying of sound recordings for training purposes. For creators, copyright law has so far offered limited recourse against their work being ingested by AI systems.
In response, the legislative focus is shifting from copyright to the right of publicity. Tennessee’s ELVIS Act and proposed federal laws like the No FAKES Act aim to protect an individual’s voice and likeness from unauthorized digital replication. Counsel should monitor this evolving landscape, as both case law and new legislation will define liability and licensing models for generative AI.