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Are Outputs of AI Models Copyrightable?

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Heather Whitney, Evangeline Phang, Tessa Schwartz, and Aaron Rubin authored an article for Law360 covering whether the outputs of generative artificial intelligence tools are copyrightable.

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Heather Whitney, Evangeline Phang, Tessa Schwartz, and Aaron Rubin authored an article for Law360 covering whether the outputs of generative artificial intelligence tools are copyrightable."It may benefit companies that are using and improving AI technology to continuously identify and track the contributions by the company's own personnel to demonstrate a high degree of control, intention and creative influence over outputs, as well as revising the company's end user terms of service and third-party courts to include appropriate terms allocating ownership and other rights to AI-generated outputs," the authors wrote.Read the <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt6ef0f12eed0d4089/63e2e79814a2b44fa11dfc33/230203-outputs-ai-models-copyrightable.pdf" target="_blank">full article</a>.

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Evangeline Phang is an associate in the Technology Transactions Group of Morrison & Foerster’s San Francisco Office.Her practice focuses on transactional matters involving intellectual property and technology, including licensing, development agreements, collaboration agreements, services agreements, manufacturing and supply agreements, outsourcing, investments, and mergers and acquisitions. Evangeline works across a variety of industries, including in the areas of software and cloud services, AR/VR, video game development, electric vehicle development, manufacturing and supply, e-commerce, biotech, FinTech, and AgTech. In addition to her practice, she is an active member of the firm’s pro bono efforts and diversity and inclusion initiatives.Prior to joining Morrison & Foerster, Evangeline worked in a molecular biology laboratory at UCSD School of Medicine, Howard Hughes Medical Institute. In addition, her diverse legal experiences extend to internships with the State Department at the U.S. Mission to the EU in Belgium, an international human rights nonprofit organization in Japan, a Fortune 500 company in the Bay Area, and a startup corporation in San Francisco.Evangeline earned her J.D. from the University of California, Berkeley School of Law, where she was the notes editor of the California Law Review and an editor of the Asian American Law Journal. She also served as a research assistant for Professor Karen M. Tani on poverty law and volunteered at the California Asylum Representation Clinic on refugee matters. Evangeline received her B.A. in International Studies and B.S. in Psychology magna cum laude from the University of California, San Diego.She is admitted to practice in California.

Evangeline Phang

Associate

Tessa Schwartz has an active practice counseling companies on intellectual property issues, and negotiating complex intellectual property and commercial agreements. She advises on a range of strategic transactions, including key patent licenses and acquisitions, technology procurement agreements, and complex development, collaboration, joint-venture and distribution deals. Tessa also regularly advises companies on the IP aspects of their M&A transactions.In addition to maintaining an active practice and working with clients on a daily basis, Tessa currently serves as co-chair of the firm’s Transactions Department. Tessa is also founder and co-chair of the Artificial Intelligence Group.Tessa advises clients primarily in technology and data intensive sectors, representing artificial intelligence (AI), robotics, machine learning, software, SaaS, cloud computing, hardware, consumer electronics and products, social media, Internet, mobility and wireless, e-commerce, advertising, healthcare, fintech, transportation, semiconductor, and other companies. Tessa’s M&A experience includes advising Autodesk, BlackBerry, Fortive, Honeywell, Salesforce, Uber, Unilever, Unity, Walmart, and others on the IP aspects of strategic transactions. Tessa provides clients with prelitigation and litigation advice. She frequently advises executives and senior management on strategic business, legal and commercial issues, including the structuring of transactions, risk management and contract compliance. She also counsels clients with respect to a wide variety of IP issues, including patent exhaustion and implied licenses, standing and standards, the protection of data and other trade secrets and the development and distribution of open-source software.In addition to her transactional expertise, Tessa’s litigation background includes representing clients in arbitration, as well as in state and federal courts in such areas as antitrust, false advertising, unfair competition, breach of contract, securities, trademark, copyright and trade secret law. Her litigation experience includes complex, multidistrict and class action litigation, as well as appellate advocacy.Tessa has been ranked in Chambers and Legal 500, with clients describing her as, “one of the best attorneys I've ever worked with.” Tessa has been recognized by Chambers USA 2022 as being highly experienced in the field of technology and intellectual property transactions. Clients have commented on Tessa as having "...the ability to translate complex topics into what's necessary to get a deal done. She does a good job of making our technology accessible”. Further, Tessa "ticks all of the essential boxes, timely, efficient, knowledgeable and helpful, but she really stands out by taking time to learn our business and our products so she can give practical and actionable advice. Tessa helps us focus on key issues and balance risks to make choices."Tessa’s pro bono efforts have included work for The Biomimicry Institute, Goodwill, Common Sense Media, Business for Social Responsibility, The World Wildlife Fund, Build Change and the Sustainability Accounting Standards Board (SASB). She also provides IP advice to a variety of cultural, media and arts organizations; and other assistance for nonprofits. She recently received the Wiley W. Manuel Award for Pro Bono Legal Services from the State Bar of California.Tessa received her B.A. magna cum laude from Harvard College in 1991. In 1996, she earned her J.D. from the University of California at Los Angeles, where she was elected to the Order of the Coif.Tessa served as global managing partner of Morrison Foerster from 2016 to 2022 and previously served as co-chair of the firm’s Technology Transactions Group.

Tessa Schwartz

Partner

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

Aaron P. Rubin

Artificial Intelligence (AI)