IP Enforcement in the Age of Generative AI: Key Considerations in 2025

Generative artificial intelligence (AI) remains a key concern in the area of intellectual property (IP) protection and enforcement in 2025. One of the most fundamental concerns—whether generative AI platform developers’ use of third-party content to “train” their platforms constitutes copyright infringement—remains unresolved, and there are many other open questions in jurisdictions across the United States and around the world.

For IP owners, generative AI creates two areas of concern. The first is the “training” issue we just mentioned. The second is whether (and when) IP owners should take legal action against parties that use AI-generated content and branding. Here is a brief look at where things stand on both of these issues from a Florida IP litigation lawyer at Lott & Fischer, PL:

Litigation Against Generative AI Platform Developers

In the United States, major publishers seem to be taking three main approaches when it comes to dealing with the IP implications of generative AI: (i) entering into license agreements with generative AI platform developers, (ii) suing generative AI platform developers for infringement; or, (ii) waiting to see how pending litigation shakes out before deciding on their next steps.

Currently, the most noteworthy case in this area is a lawsuit that The New York Times and other publishers filed against OpenAI and Microsoft in late 2023. This case is still very much in its early stages. In the lawsuit, The New York Times and its co-plaintiffs allege that OpenAI and Microsoft’s use of their journalistic work without their consent constitutes a clear violation of their exclusive rights under the Copyright Act.

As explained in a recent article on NPR discussing The New York Times and other publishers’ pending lawsuit against OpenAI and Microsoft:

“The publishers’ core argument is that the data that powers ChatGPT has included millions of copyrighted works from the news organizations, articles that the publications argue were used without consent or payment — something the publishers say amounts to copyright infringement on a massive scale.”

It is interesting that OpenAI and Microsoft have entered into licenses with some publishers while simultaneously arguing that they have the right to freely access and use other publishers’ data under the doctrine of “fair use.” Whenever this case gets resolved, its outcome—whatever that outcome may be—will almost certainly send shockwaves through the generative AI and online content publication communities.

Litigation Against Users of Generative AI

Regardless of whether generative AI developers are liable for copyright infringement, there is also the separate question of whether users of generative AI platforms can be held liable for creating and using works and trademarks that are similar to IP owners’ pre-existing assets.

Copyright Infringement By Users of Generative AI

To establish a claim for copyright infringement, a plaintiff must generally be able to prove one of the following by a preponderance of the evidence:

• “[T]he defendant had access to the plaintiff’s copyrighted work and . . . there are substantial similarities between the defendant’s work and original elements of the plaintiff’s work;” or,
• “[T]here is a striking similarity between the defendant’s work and the plaintiff’s copyrighted work.”

When an owner has registered a work with the U.S. Copyright Office before an incident of alleged infringement occurs or within three months of publication of the work the copyright owner is eligible to seek statutory damages, attorneys’ fees, and costs. Registration within five years of publication creates a presumption of validity of the copyright. A presumption of copying arises if the plaintiff proves that the defendant had access to the plaintiff’s work and that there is a substantial similarity between the original elements of the infringed and alleged infringing works. Furthermore, defendants can be held liable for indirect copyright infringement if they “actively induced, encouraged or materially contributed to the infringing activity.”

As a result, regardless of whether generative AI platform developers can be held liable for copyright infringement, there would seem to be a strong case that users of these platforms can be held liable—either directly or indirectly—for inducing and then subsequently commercializing works that are either substantially similar or strikingly similar to copyrighted works in many cases. Whether these users would then have claims against generative AI platform developers is a separate question that may ultimately be answered by developers’ terms of use.

Trademark Infringement By Users of Generative AI

Cases involving the use of confusingly similar trademarks generated by AI platforms arguably present fewer AI-specific questions. This is because, unlike copyright infringement cases, access and copying are not issues in trademark infringement cases. Instead, the sole focus is on whether the defendant’s use of a trademark that is similar to the plaintiff’s pre-existing trademark creates a likelihood of confusion in the marketplace.

For example, let’s say the owner of a coffee shop enters a prompt for a generative AI platform to create a logo for the owner’s new business. If the generative AI platform creates a logo that looks a lot like Starbucks’ famous green and white “Siren” logo, then using this logo to promote the owner’s new coffee shop would constitute trademark infringement regardless of how the logo was developed. Here, too, the owner of the coffee shop may or may not have a claim against the developer of the generative AI platform, but this would have no bearing on Starbucks’ ability to assert its exclusive rights against an infringing competitor.  

As generative AI continues to become more mainstream in 2025 and beyond, many IP owners are going to face new and novel challenges when it comes to protecting their valuable intangible assets. If you have questions about what your company can (and should) be doing to protect its IP in the age of AI, we invite you to contact us for more information.

Speak with a Florida IP Litigation Lawyer at Lott & Fischer, PL

Lott & Fischer, PL is an intellectual property law firm headquartered in Coral Gables, Florida that represents IP owners throughout the U.S. and worldwide. To schedule a call with a Florida IP litigation lawyer at our firm, give us a call at 305-448-7089 or tell us how we can get in touch online today.