Contemporary Approaches to IP Protection: Developments in the US Art Market

Abstract

This article examines recent developments in United States (US) intellectual property (IP) law that directly affect the art market, namely: 1) the judicial interpretation of fair use and the use of copyrighted material to train AI systems; 2) the US Copyright Office’s refusal to register certain AI-generated works; and 3) the application of trademark law to NFTs (Non-fungible tokens). The aim of this article is to provide an overview of the constantly evolving legal landscape in this field while highlighting controversies that will likely continue to arise in the near future. As a jurisdiction where new technologies, the art market, and IP case law overlap, the US is in a unique position to reflect ongoing changes as well as in-depth interpretations of existing provisions.