Yes. AI-generated output infringes a copyright when it substantially reproduces the protected expression of an existing work, even if the AI user did not consciously intend to copy a specific work. An independently created work, however, does not infringe the copyright in an identical or substantially similar work. Creating an identical work is infringement only if copying occurred. Copying may be proved circumstantially by proof that the creator of the second work had access to the first work and that the second work is substantially similar to the first. In the case of AI-generated output, access might be established by proof that the AI tool was trained on the copyrighted work, at least if the AI tool did not have guardrails in place to minimize the risk of output infringement.
