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Copyright Law

Art generated solely by AI can’t be copyrighted, federal appeals court says

By Debra Cassens Weiss

March 19, 2025, 11:05 am CDT

A federal appeals court has ruled against a computer scientist who sought to copyright a work of art made by his artificial intelligence system, the “Creativity Machine.”

Computer scientist Stephen Thaler is not entitled to copyright artwork made solely by AI, the U.S. Court of Appeals for the District of Columbia Circuit ruled Tuesday.

Reuters and Courthouse News Service have coverage of the March 18 opinion.

“The Creativity Machine cannot be the recognized author of a copyrighted work because the Copyright Act of 1976 requires all eligible work to be authored in the first instance by a human being,” the D.C. Circuit said in a decision by Judge Patricia Millett, an appointee of former President Barack Obama.

The holding makes is unnecessary to address the U.S. Copyright Office’s argument that the U.S. Constitution also requires human authorship of copyrighted material, Millett said. The appeals court also said Thaler had waived an argument that he could obtain a copyright because he made and used the Creativity Machine.

The D.C. Circuit said its decision does not prohibit a copyright when a work is authored by a human with the help of AI.

“The rule requires only that the author of that work be a human being—the person who created, operated or used artificial intelligence—and not the machine itself,” Millett said.

Millett acknowledged that the Copyright Office has rejected some copyright applications based on the human-authorship requirement, even when a human is listed as the author.

“Line-drawing disagreements” over how much that AI contributed to a work aren’t issue in Thaler’s case, however, because he listed the Creativity Machine as the sole author, the appeals court said.

Thaler plans to appeal the decision, his attorney, Ryan Abbott, told Reuters.

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Technology

No. 42 law firm by head count could face sanctions over fake case citations generated by AI

By Debra Cassens Weiss

February 10, 2025, 10:30 am CST

Updated: Lawyers from plaintiffs law firm Morgan & Morgan are facing possible sanctions for a motion that cited eight nonexistent cases, at least some of which were apparently generated by artificial intelligence.

In a Feb. 6 order, U.S. District Judge Kelly H. Rankin of the District of Wyoming told lawyers from Morgan & Morgan and the Goody Law Group to provide copies of the cited cases, and if they can’t, to show cause why they shouldn’t be sanctioned.

Law360 and Original Jurisdiction have coverage.

The cases cited by the court had been “hallucinated” by an internal AI platform and were not legitimate, the firms said in a Feb. 10 response to the show-cause order.

“This matter comes with great embarrassment and has prompted discussion and action regarding the training, implementation and future use of artificial intelligence within our firm,” the response said. “This serves as a cautionary tale for our firm and all firms, as we enter this new age of artificial intelligence.”

The law firms’ brief had cited nine cases, but Rankin could locate only one of them. Some of the citations did lead to cases under different names.

The lawyers’ motion also included a description of the governing legal standard that was “peculiar,” Rankin said. The motion correctly cited a federal rule of evidence but then went on to say “Wyoming caselaw reinforces these principles.” To support the assertion about Wyoming caselaw, the motion cited fake federal district court cases.

“Notwithstanding this slight inconsistency, experienced litigators like plaintiffs’ counsel should know that this court is a federal court, and therefore federal procedural law governs evidentiary issues,” Rankin wrote.

Morgan & Morgan is ranked No. 42 in the United States based on firm head count, according to Original Jurisdiction, which cited figures from the American Lawyer. The Goody Law Group appears to be a small firm based in California.

“Moral of the story: Lawyers at large firms can misuse ChatGPT as well as anyone,” wrote Above the Law founder David Lat at Original Jurisdiction.

The case involves a hoverboard sold by Walmart that allegedly exploded and caught fire, according to Law360.

The lawyers who signed the now-withdrawn motion with the alleged fake cites were Rudwin Ayala and T. Michael Morgan of Morgan & Morgan and Taly Goody of the Goody Law Group.

They did not immediately respond to ABA Journal emails seeking comment. Morgan and Goody did not respond to Journal voicemails. A person who answered a call at Morgan & Morgan could not locate Ayala in the directory.

The communications director for Morgan & Morgan emailed the Journal a copy of the show-cause response after it was filed.

Updated Feb. 12 at 8:50 a.m. to report on the response to the show-cause order.

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3. Fake citations in legal brief were generated…

Legal Writing

Fake citations in legal brief were generated by Google Bard AI program, says ex-Trump lawyer Michael Cohen

By Debra Cassens Weiss

January 2, 2024, 10:08 am CST

Former lawyer Michael Cohen has informed a federal judge that the nonexistent cases cited in a legal brief were generated by Google Bard, an artificial intelligence program.

Cohen, who was once a lawyer for former President Donald Trump, was under the impression that Google Bard was a “super-charged search engine,” rather than an AI program, said his lawyer E. Danya Perry, a lawyer with Perry Law, in a letter to the judge unsealed Friday.

Thinking that the cases that he found were real, Cohen provided them to the lawyer seeking an early end to his supervised release, David M. Schwartz, Cohen said in an affidavit submitted with Perry’s letter. Cohen, who is now disbarred, pleaded guilty in 2018 to campaign finance violations and bank and tax fraud.

The New York Times, Reuters and Courthouse News Service are among the publications covering the declaration.

Cohen had used Google Bard in the past to “to successfully identify accurate information in other contexts before and did not appreciate its unreliability as a tool for legal research,” Perry said in her letter.

Schwartz included the citations in his brief without checking them because he was under the mistaken impression that Perry, who was representing Cohen in another matter, had provided them. Perry did give Cohen “very cursory notes on an early draft of the motion” that did not, at that time, include the fake citations. But she did not review future drafts of the motion, as Schwartz came to believe, she said in her letter to the judge.

Perry had represented Cohen in a separate case against Trump in New York state court. Perry sought to enter the supervised release case on Cohen’s behalf because she thought that government lawyers had mischaracterized Cohen’s testimony in the Trump case. In preparing a reply motion to the government filing, Perry discovered that the citations were fake and disclosed the problem to U.S. District Judge Jesse Furman of the Southern District of New York.

The disclosure led Furman to issue an order to show cause why Schwartz should not be sanctioned. The judge has not yet ruled on the issue.

Perry said she did not intend to imply bad faith on Schwartz’s part. But, she added, “even a quick read of the nonexistent cases at issue here should have raised an eyebrow.”

One citation, for example, had a 2021 docket number, suggesting that the defendant had been indicted in 2021. But the defendant had purportedly served a 120-month sentence and been placed on supervised release, a decision said to be affirmed by a federal appeals court. That would be “a chronological impossibility,” Perry wrote.

AI has ensnared at least a dozen lawyers or litigants who used its case citations in legal filings, Eugene Volokh, a professor at the University of California at Los Angeles School of Law, told the New York Times.

Chief Justice John Roberts focused on AI in his 2023 Year-End Report on the Federal Judiciary, report the National Law Journal and SCOTUSblog.

AI could be used in the future to help increase access to justice by providing answers to basic questions and directing litigants where to find templates and court forms, Roberts said. As the technology evolves, courts will have to consider its proper use in litigation, he wrote.

“Any use of AI requires caution and humility,” Roberts added.

He referred to a previous instance in which an AI “hallucination” produced citations to nonexistent cases, which were then included in a brief.

“Always a bad idea,” he observed.

See also:

“Response to fake-citations query implicates attorney-client privilege, Michael Cohen’s lawyer says”

“Lawyers who ‘doubled down’ and defended ChatGPT’s fake cases must pay $5K, judge says”