March 27, 2025 • 13 mins
I spoke with Vincent Allen, partner at Carstens, Allen & Gourley, an IP-focused law firm that helps companies with patent, trademark, copyright, trade secrets, and intellectual property strategies. We discussed how current copyright laws address authorship and ownership of AI-created works, strategies content creators can use to protect their intellectual property when AI tools are used, and measures that can be taken to ensure that human creators are fairly compensated and protected.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:00):
Welcome to Reinviting Professionals, a podcast hosted by industry analyst Ari Kaplan,
(00:07):
which shares ideas, guidance and perspectives from market leaders shaping the next generation
of legal and professional services.
This is Ari Kaplan and I'm speaking today with Vincent Allen, partner at Carsten's Allen
and Gourley, an IP-focused law firm that helps companies with patent, trademark, copyright,
(00:29):
and copyrighted secrets and intellectual property strategies.
Hi, Vincent, how are you?
I'm great. How are you doing, Ari?
I'm doing well. I'm looking forward to this conversation.
So tell us about your background and the genesis of Carsten's Allen and Gourley.
I grew up in South Mississippi and I learned how to tear things apart at a very early age,
(00:52):
including the Toaster Reven in the Kuku Clock and ended up going to aircraft maintenance
school, right out of high school, and decided during that program that I really liked electrical
engineering or the electrical classes that I took and so I decided to go into electrical
engineering after that.
Well, when I was at Mississippi State studying electrical engineering, one of my professors
(01:17):
said, "Well, why don't you go to grad school, get your grad degree here in Massachusetts
in W.E."
I said, "Well, let me think about it and I just happened to stumble across patent law
when I was researching what the opportunities were for me."
And so I decided to go to law school instead and I went to law school at Bayer and then
(01:39):
I came up to work in Dallas at the firm right now.
It was a different name at the time, but I was the first summer clerk of the firm back in
1998 and I started working with them after graduation from law school and I worked my way up
to now one of the equity partners of the firm.
(02:01):
And over the course of my career, I've done quite a variety of legal work, litigation, a
lot of aviation and technology related litigation, patent and print mitigation, copyright litigation,
trademark litigation.
And so we've had sort of a boutique practice for over 25 years now and one of the things
(02:26):
that we've done over the past two years is we've expanded out to do a more general practice
technology law and the reason we did that is because of AI.
AI came around and I got really interested in it and started learning a lot about it right
after chat GPT came out.
(02:48):
And then I started talking to another gentleman named Rob Taylor about a year later and he
joined our firm and helped us establish what we call in the AI triage center, which is
what we used to help advise clients about various AI issues from compliance to risk, to patent
(03:08):
protection, whatever it might be associated with AI, we're helping clients deal with those
issues.
How do current copyright laws address authorship and ownership of AI created works?
The current status of copyright law doesn't adequately, on AI related or AI generated works.
(03:31):
In fact, the copyright office says if you are not making any changes to an AI generated
work and it's not entitled to copyright protection, I don't think that's really the right solution.
I think we need to think about what are the creative tools or creative inputs that somebody
(03:52):
might be using to generate an AI generated work, but that's what we are right now.
And in fact, there's a case as called the Jason Allen case.
He filed a copyright application for a work of art that he generated using AI and was trying
to get copyright protection for it.
(04:14):
Copyright office said, well, you can have copyright protection on the final work, but only
for the changes that you made using Adobe and some other software to finish up your artwork,
the original work that was generated by, I think it was mid-journey that he was using, that
(04:36):
is not protectable and you have to describe that.
Well, that's currently in litigation in Colorado and we'll see whether or not the courts agree
with me that if you've got a bunch of different iterations and inputs into this artwork, then
you should be able to get copyright protection for it even if you didn't make any particular
(05:02):
changes to it after it generated by a genealogy.
What strategies should content creators use to protect their intellectual property when
they're using AI tools to create that content?
Well, under the current regime, which is if it generated solely by AI, you can't get
(05:23):
protection.
I think it's important to make sure that you're making some changes to it, that you're
tweaking it, that you're putting some creative input into the work and then file for copyright
application on your work, right?
So you can protect it that way still.
(05:43):
So what does that mean?
That means well, you still need some human contribution to the work and you need to show
that you exerted some control over the creative aspects of the work that may have been generated
using AI as an assistant or a tool.
(06:04):
And then of course you'll want to document your process.
If you're doing this, record your inputs, make sure you keep a record of how you directed
the gene AI tool or how you use this output, track your edits so you can show the revisions
and modifications that you made to it.
And if you do that, then that'll make it easier when you're trying to file for copyright
(06:28):
protection.
And it may also help you if the law does change to show, yeah, this was generated by
AI, but I should be entitled to protection of all of it, not just to change it because
I did all these creative inputs in order to reach the resulting work.
What are the legal challenges for creators whose work has actually been used to train an
(06:55):
AI model without their consent?
There have been several lawsuits that have already been filed by content creators against
open AI and other AI models because they used all of this content without permission.
What it's going to bore down to in those cases is whether training of an AI model is actually
(07:20):
fair use under the copyright law.
That's a legal doctrine that was established by the courts that allows people and entities
to make copies of copyrighted works in certain instances.
And one of those instances is where the use is transformative.
(07:44):
And so the AI developers are arguing that the use of copyrighted material for training
is quite as far as fair use because it is transformative.
They're producing a GNI model that's completely different from what the original work is.
They're claiming that the only limited portions of the work are used and that it doesn't
(08:06):
actually harm the market for the original work.
So whether that will stand up is probably something that's going to get decided by a jury
at some point, but that is one of the challenges is for content creators is knowing that their
work can be used to train these GNI AI models and it might be fair use.
(08:31):
So what could you do if it is fair use?
Well there's some things that you could do even then you could set up a paywall.
If you don't want to just put your content out on the web then you might have a paywall
or you might have changed or I'm sorry you might have tons of service on your website that
(08:55):
users would have to agree to before they can view the artwork or the text or whatever it
is that you're providing on the website.
And in those terms of service you can make it clear that this work cannot be used to train
an AI model.
There's also some technical tools that can be used as well.
(09:21):
One is called the robots.text file that can be placed on a website, the block, an AI
bot from scraping the web.
I mean there's ways to get around that but that can help prevent the data mining that goes
on whenever a company is using the whole web to train the model.
(09:46):
What about compensating human creators for the work that they're producing?
Well that is something I think that might be a solution to this whole idea of training
using copyrighted works and there's already a movement of foot.
(10:07):
Some entities are trying to get permission or license to use vast databases of works in
order to train their models.
And so I think that is a way that content creators can be compensated for what they've done.
(10:30):
And typically it's going to be some small royalty rate that might be generated as a result
but it might be similar to what we use for music streaming for example.
The songwriters and the musicians don't enter into individual license agreements with all
(10:52):
of these entities.
They're just part of entities like ASCAP which are responsible for securing the role
of royalties and distributing those to the users based on the amount of plays or use of
the copyrighted music that might be present in their system.
(11:15):
What do you see as the future of intellectual property in a world where artificial intelligence
and humans are collaborating on creative projects?
I believe that we need to have some changes in the law and the copyright law in particular.
I think you need to reflect the fact that using GNI is a tool much like other tools using
(11:40):
Adobe for example to doctor an image.
You're still entitled to copyright protection in that image even though you use some computer
software to assist you in doing that.
I think it needs to change but I do think ultimately we will get there but as far as IP right now
(12:03):
is difficult to protect or should have generated by AI and so I think content creators have to
be mindful of that.
Maybe they make the decision that we're not really going to use it or maybe they make the
decision okay we're going to use it for discrete aspects of our overall.
(12:24):
We're going to combine it all together in a collective work where that would be considered
copyrightable as a compilation and so that's one thing that content creators might want
to do when they're trying to protect their IP but I do think that there needs to be a discussion
(12:45):
within Congress about how we're going to protect IP related to AI rather than relying
on the courts or the copyright office to make those decisions for us.
This is Ari Kaplan speaking with Vincent Allen, partner at Carson's Allen and Gourley an
(13:06):
IP focused law firm that helps companies with patent, trademark, copyright, trade secrets
and intellectual property strategies.
Vincent thanks so very much.
Thank you.
Thank you for listening to the re-inventing professionals podcast.
Visit re-inventingprofessionals.com or re-caplenedadvisors.com to learn more.
Welcome to Reinviting Professionals, a podcast hosted by industry analyst Ari Kaplan,
(00:07):
which shares ideas, guidance and perspectives from market leaders shaping the next generation
of legal and professional services.
This is Ari Kaplan and I'm speaking today with Vincent Allen, partner at Carsten's Allen
and Gourley, an IP-focused law firm that helps companies with patent, trademark, copyright,
(00:29):
and copyrighted secrets and intellectual property strategies.
Hi, Vincent, how are you?
I'm great. How are you doing, Ari?
I'm doing well. I'm looking forward to this conversation.
So tell us about your background and the genesis of Carsten's Allen and Gourley.
I grew up in South Mississippi and I learned how to tear things apart at a very early age,
(00:52):
including the Toaster Reven in the Kuku Clock and ended up going to aircraft maintenance
school, right out of high school, and decided during that program that I really liked electrical
engineering or the electrical classes that I took and so I decided to go into electrical
engineering after that.
Well, when I was at Mississippi State studying electrical engineering, one of my professors
(01:17):
said, "Well, why don't you go to grad school, get your grad degree here in Massachusetts
in W.E."
I said, "Well, let me think about it and I just happened to stumble across patent law
when I was researching what the opportunities were for me."
And so I decided to go to law school instead and I went to law school at Bayer and then
(01:39):
I came up to work in Dallas at the firm right now.
It was a different name at the time, but I was the first summer clerk of the firm back in
1998 and I started working with them after graduation from law school and I worked my way up
to now one of the equity partners of the firm.
(02:01):
And over the course of my career, I've done quite a variety of legal work, litigation, a
lot of aviation and technology related litigation, patent and print mitigation, copyright litigation,
trademark litigation.
And so we've had sort of a boutique practice for over 25 years now and one of the things
(02:26):
that we've done over the past two years is we've expanded out to do a more general practice
technology law and the reason we did that is because of AI.
AI came around and I got really interested in it and started learning a lot about it right
after chat GPT came out.
(02:48):
And then I started talking to another gentleman named Rob Taylor about a year later and he
joined our firm and helped us establish what we call in the AI triage center, which is
what we used to help advise clients about various AI issues from compliance to risk, to patent
(03:08):
protection, whatever it might be associated with AI, we're helping clients deal with those
issues.
How do current copyright laws address authorship and ownership of AI created works?
The current status of copyright law doesn't adequately, on AI related or AI generated works.
(03:31):
In fact, the copyright office says if you are not making any changes to an AI generated
work and it's not entitled to copyright protection, I don't think that's really the right solution.
I think we need to think about what are the creative tools or creative inputs that somebody
(03:52):
might be using to generate an AI generated work, but that's what we are right now.
And in fact, there's a case as called the Jason Allen case.
He filed a copyright application for a work of art that he generated using AI and was trying
to get copyright protection for it.
(04:14):
Copyright office said, well, you can have copyright protection on the final work, but only
for the changes that you made using Adobe and some other software to finish up your artwork,
the original work that was generated by, I think it was mid-journey that he was using, that
(04:36):
is not protectable and you have to describe that.
Well, that's currently in litigation in Colorado and we'll see whether or not the courts agree
with me that if you've got a bunch of different iterations and inputs into this artwork, then
you should be able to get copyright protection for it even if you didn't make any particular
(05:02):
changes to it after it generated by a genealogy.
What strategies should content creators use to protect their intellectual property when
they're using AI tools to create that content?
Well, under the current regime, which is if it generated solely by AI, you can't get
(05:23):
protection.
I think it's important to make sure that you're making some changes to it, that you're
tweaking it, that you're putting some creative input into the work and then file for copyright
application on your work, right?
So you can protect it that way still.
(05:43):
So what does that mean?
That means well, you still need some human contribution to the work and you need to show
that you exerted some control over the creative aspects of the work that may have been generated
using AI as an assistant or a tool.
(06:04):
And then of course you'll want to document your process.
If you're doing this, record your inputs, make sure you keep a record of how you directed
the gene AI tool or how you use this output, track your edits so you can show the revisions
and modifications that you made to it.
And if you do that, then that'll make it easier when you're trying to file for copyright
(06:28):
protection.
And it may also help you if the law does change to show, yeah, this was generated by
AI, but I should be entitled to protection of all of it, not just to change it because
I did all these creative inputs in order to reach the resulting work.
What are the legal challenges for creators whose work has actually been used to train an
(06:55):
AI model without their consent?
There have been several lawsuits that have already been filed by content creators against
open AI and other AI models because they used all of this content without permission.
What it's going to bore down to in those cases is whether training of an AI model is actually
(07:20):
fair use under the copyright law.
That's a legal doctrine that was established by the courts that allows people and entities
to make copies of copyrighted works in certain instances.
And one of those instances is where the use is transformative.
(07:44):
And so the AI developers are arguing that the use of copyrighted material for training
is quite as far as fair use because it is transformative.
They're producing a GNI model that's completely different from what the original work is.
They're claiming that the only limited portions of the work are used and that it doesn't
(08:06):
actually harm the market for the original work.
So whether that will stand up is probably something that's going to get decided by a jury
at some point, but that is one of the challenges is for content creators is knowing that their
work can be used to train these GNI AI models and it might be fair use.
(08:31):
So what could you do if it is fair use?
Well there's some things that you could do even then you could set up a paywall.
If you don't want to just put your content out on the web then you might have a paywall
or you might have changed or I'm sorry you might have tons of service on your website that
(08:55):
users would have to agree to before they can view the artwork or the text or whatever it
is that you're providing on the website.
And in those terms of service you can make it clear that this work cannot be used to train
an AI model.
There's also some technical tools that can be used as well.
(09:21):
One is called the robots.text file that can be placed on a website, the block, an AI
bot from scraping the web.
I mean there's ways to get around that but that can help prevent the data mining that goes
on whenever a company is using the whole web to train the model.
(09:46):
What about compensating human creators for the work that they're producing?
Well that is something I think that might be a solution to this whole idea of training
using copyrighted works and there's already a movement of foot.
(10:07):
Some entities are trying to get permission or license to use vast databases of works in
order to train their models.
And so I think that is a way that content creators can be compensated for what they've done.
(10:30):
And typically it's going to be some small royalty rate that might be generated as a result
but it might be similar to what we use for music streaming for example.
The songwriters and the musicians don't enter into individual license agreements with all
(10:52):
of these entities.
They're just part of entities like ASCAP which are responsible for securing the role
of royalties and distributing those to the users based on the amount of plays or use of
the copyrighted music that might be present in their system.
(11:15):
What do you see as the future of intellectual property in a world where artificial intelligence
and humans are collaborating on creative projects?
I believe that we need to have some changes in the law and the copyright law in particular.
I think you need to reflect the fact that using GNI is a tool much like other tools using
(11:40):
Adobe for example to doctor an image.
You're still entitled to copyright protection in that image even though you use some computer
software to assist you in doing that.
I think it needs to change but I do think ultimately we will get there but as far as IP right now
(12:03):
is difficult to protect or should have generated by AI and so I think content creators have to
be mindful of that.
Maybe they make the decision that we're not really going to use it or maybe they make the
decision okay we're going to use it for discrete aspects of our overall.
(12:24):
We're going to combine it all together in a collective work where that would be considered
copyrightable as a compilation and so that's one thing that content creators might want
to do when they're trying to protect their IP but I do think that there needs to be a discussion
(12:45):
within Congress about how we're going to protect IP related to AI rather than relying
on the courts or the copyright office to make those decisions for us.
This is Ari Kaplan speaking with Vincent Allen, partner at Carson's Allen and Gourley an
(13:06):
IP focused law firm that helps companies with patent, trademark, copyright, trade secrets
and intellectual property strategies.
Vincent thanks so very much.
Thank you.
Thank you for listening to the re-inventing professionals podcast.
Visit re-inventingprofessionals.com or re-caplenedadvisors.com to learn more.
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