Marketa Trimble (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted The U.S. Fair Use Doctrine and AI Training in Light of the Developments in U.S. Copyright Law, in A Research Agenda on IP Law and AI (Anke Moerland & Noam Shemtov eds., forthcoming) on SSRN. Here is the abstract:
This chapter will appear in a forthcoming volume in Edward Elgar’s Research Agendas series; the focus of the volume is the intersection of intellectual property and artificial intelligence (“AI”). The chapter reviews the application of the U.S. fair use doctrine in cases involving the training of generative AI models. The chapter highlights recent developments in U.S. copyright law and the fair use doctrine, including the controversial American Law Institute project of the Restatement of the Law, Copyright, and the Register of Copyrights’ Report on Copyright and Artificial Intelligence. After reviewing the circumstances in which copyright infringement by AI training might be claimed and fair use raised in defense to such claims, the chapter discusses the different elements of the fair use analysis on which the practice and the courts have placed emphasis in recent years, including the substitution element. The chapter then analyzes the fair use factors as they apply to facts in generative AI training cases. The chapter reflects the 2025 decisions in Bartz v. Anthropic and Kadrey v. Meta Platforms and recent developments in other cases filed against AI companies in U.S. federal district courts.
The scope of the chapter has been constrained by the required chapter length limit.
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