AI As A Tool, Not A Legal Actor: How Courts Have Allocated Legal Responsibility For AI Across Different IP Regimes

When an AI Creator Enters the Courtroom
Intellectual property rights have historically existed in the context of human creators. The inventor, author, or holder of the works in dispute was always a human—or at the very least, a legal entity composed of humans. But what happens when the creator is not human or a human entity? What if the works at issue were created entirely by generative AI, such that inventorship, authorship, or ownership cannot be assigned to a human? As the capabilities of AI continue to advance, courts now face a new challenge: determining legal responsibility for AI-generated works.

Despite this recent technological shift, courts have declined to modify the principles of IP law to recognize AI as a creator of IP rights. Recent court decisions reflect a consistent underlying theme: AI is treated as a tool used by humans, not a legal actor capable of creating, owning, or bearing responsibility for IP rights or disputes.

Patent Law: Inventorship Requires Human Conception
A patent application must include the name of the inventor for any invention claimed in the application. 37 CFR § 1.41(a). Recently, the Federal Circuit considered whether an AI software system could be listed as the inventor on a patent application. See Thaler v. Vidal, 43 F.4th 1207, 1209 (Fed. Cir. 2022). In lieu of an inventor’s name, the plaintiff, Thaler, wrote on his patent application that the invention was generated by AI. Id. Before Thaler, every inventor named on a U.S. patent application had been a human being. The Federal Circuit declined to create new law applicable to AI inventors, holding that patent inventors must be human beings. Id. at 1212. The Court relied on the Patent Act’s description of inventors as “individuals,” as well as the Act’s use of personal pronouns such as “himself” or “herself” to refer to an “individual,” in reaching its conclusion. Id. at 1211 (citing 35 U.S.C. § 115(b)(2)). The Federal Circuit also cited the Supreme Court’s definition of “individual”—meaning a human being—to further support its reasoning. Id. at 1211 (citing Mohamad v. Palestinian Auth., 566 U.S. 449, 454 (2012)). The Court made it clear that it was specifically addressing whether AI could be named as an inventor in a patent application, and distinguished this from the question of whether inventions made by human beings “with the assistance of AI are eligible for patent protection,” which the court did not address directly. Id. at 1213.

The Federal Circuit’s holding in Thaler indicates that the Court has no plans to modify patent law in a way that would extend patent inventorship rights to AI inventors anytime soon. Recognizing this indication is important because the growth in AI’s capabilities has recently allowed inventors to increasingly rely on AI when creating their inventions. That said, courts are taking notice of AI-generated technology and have made it a point to distinguish AI inventorship from AI assistance in human inventorship. Inventors may view Thaler as guidance not to treat AI as an inventor capable of obtaining patent rights, but rather as a tool that may assist a human inventor in the creation of an invention.

Copyright Law: Authorship Requires a Human Being
Copyright vests initially in the author or authors of the work. 17 U.S.C. § 201(a). However, does this still apply if the author is a non-human? The D.C. Circuit recently addressed this question in Thaler v. Perlmutter, where a plaintiff attributed authorship of an artwork to the operation of software. See Thaler v. Perlmutter, 130 F.4th 1039, 1041 (D.C. Cir. 2025), cert. denied, __ U.S. __ (Mar. 2, 2026) (No. 25-449). The Court held that copyright authorship could not be granted to a non-human since numerous Copyright Act provisions identify “authors” as human beings and “machines” as tools used by humans in the creative process rather than as creators themselves. Id. at 1045. The Court discussed how its holding was supported by the Copyright Office’s various updates to the Copyright Act over the years, including a 1973 update explicitly stating that works must “owe their origin to a human agent.” Id. at 1047 (citing Compendium of U.S. Copyright Office Practices, First Edition § 2.8.3(I)(a)(1)(b)). In March of 2026, the Supreme Court denied certiorari in Thaler v. Perlmutter. Like the Federal Circuit’s approach in Thaler v. Vidal, the D.C. Circuit declined to invent new copyright law to accommodate AI authorship. Instead, the Court looked to the existing language of the Copyright Act, as well as documented regulations to reiterate the humanity requirement for copyright authorship. As human authors increasingly rely on AI in developing their works, Thaler serves as a guardrail reinforcing the importance of human involvement in the creative process.

Trademark Law: Established Frameworks Remain Unchanged with AI
Unlike patent and copyright law, which tie ownership to inventorship or authorship, trademark law does not tie ownership to creation. Instead, trademark rights arise from the first use of a mark in commerce. The courts have not yet encountered a case involving a trademark used in commerce by a non-human. Nonetheless, when faced with a trademark issue involving an AI-generated work, courts have not changed the way they apply trademark law. Lehrman v. Lovo, Inc. involved a false association claim (Section 43(a)(1)(A) of the Lanham Act) and a false advertising claim (Section 43(a)(1)(B) of the Lanham Act) in which the work at issue was an AI-generated reproduction of the plaintiff’s voice. See Lehrman v. Lovo, Inc., 790 F.Supp.3d 348, 358, 362 (S.D.N.Y. 2025). When addressing each of these claims, the AI-generated nature of the alleged infringing works did not affect the way the Court conducted its analysis. Id. at 362–373. The Court instead applied the standard false association and false advertising frameworks under the Lanham Act. Id.

The limited number of trademark cases involving AI-generated works makes the Lehrman decision instructive because it is one of the few examples illustrating the judiciary’s continued adherence to standard trademark frameworks when confronted with AI-generated works. This emphasis on doctrinal continuity suggests that courts are unlikely to expand trademark law to recognize AI systems as legal trademark holders, even as the capabilities of AI content generation become more sophisticated. For instance, if courts are faced with the question of whether an AI system could qualify as a trademark owner under the Lanham Act’s first-use-in-commerce rule, the reasoning in Lehrman, paired with the Thaler v. Vidal and Thaler v. Perlmutter decisions, strongly indicates that courts would be reluctant to treat the AI system as the trademark holder.

Conclusion and Practical Implications
Across the three IP regimes, courts have maintained a consistent theme when addressing AI-generated works: AI is a tool, not a legal actor. By adhering to established IP frameworks when confronted with AI-generated inventions or works, courts have made it clear that IP rights vest in humans.

Clients may now face new questions regarding the use of AI in their innovations, including the extent to which an invention is patentable, or a creative work is copyrightable. Clients should consider policies that guide employees who use AI tools in the development process. For example, such policies may require employees to document whether an idea was conceived by a human, or generated by AI, as well as which AI tools were used and how they were used. Creating these internal records may be helpful with addressing future patent or copyright challenges. Clients seeking IP protection for inventions or works created using generative AI should therefore acknowledge and emphasize human involvement in their creation, as such involvement can be determinative of whether IP protection applies. In the trademark context, the critical issue for clients remains the identity and conduct of the human actor using the mark in commerce, meaning the infringement analysis will focus on who is responsible for using the mark, rather than on the involvement of AI tools in generating the mark.

Adam Nguyen, a Law Clerk at Baker Botts, assisted in the preparation of this article.

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