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Services like Character.ai allows users to create custom characters using language model fine-tuning, based on instructions provided by its users. Are the fictional characters created by the users of these services still subject to copyright protection of the original work, in a way that they infringe on the copyright?

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It is possible for AI created works to infringe on copyrights. This could be either via the training material of the AI, or via the instructions provided by the user. But there is no bright line rule. It would have to be evaluated on a case by case basis.

In theory, independently created works that end up being similar to copyrighted works merely by chance, and not through any connection to the original copyrighted work, is not infringing. But it is hard to prove this kind of independent creation, especially in the context of AI where much of the key creative process takes place in a "black box" that isn't easy for a court to prove, or a defendant in a copyright infringement lawsuit to establish.

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    It's possible to read this as saying independent creation is a burden of the defendant to establish as a defence. But the plaintiff has the burden of showing "copying" by establishing "access and similarity" or similarities "so striking as to preclude the possibility that the plaintiff and defendant independently arrived at the same result." ... cont'd
    – Jen
    Commented Aug 14 at 0:59
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    See the 9th Circuit's description, and a survey of approaches across a few other circuits by Lydia Pallas Loren & R. Anthony Reese, "Proving Infringement: Burdens of Proof in Copyright Infringement Litigation", pp. 640-42, 658 (explaining the misnomer of independent creation as a "defense"). Certainly the defendant may end up with a practical burden, but the burden is still officially on the plaintiff in this circumstance. It isn't a true burden flip like fair use.
    – Jen
    Commented Aug 14 at 0:59
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    @Jen Fair points. My language was sloppy. The reasonable inference from similarity, however, as a practical matter, means that if it is similar, it is very risky for a defendant not to present positive evidence of non-copying.
    – ohwilleke
    Commented Aug 14 at 1:37
  • @Jen Consider asking an AI to create a cartoon mouse. You might expect a result containing a mix of features of Mickey Mouse, Mighty Mouse, Jerry (from Tom and Jerry), etc. But if it looks almost identical to Mickey, the defendant will have some splaining to do.
    – Barmar
    Commented Aug 14 at 16:40
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    @Barmar If you tell AI "Draw Iron Man"... things are much clearer.
    – Trish
    Commented Aug 15 at 9:28

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