Vondran Legal® AI Tort Law - Exploring the Next Frontier of AI Liability
By Vondran Legal® | Nationwide Intellectual Property, Internet, AI & Business Litigation Lawyers
Artificial intelligence is no longer just answering trivia questions or drafting emails. Modern AI systems can generate images, videos, legal documents, advertisements, computer code, fake celebrity endorsements, and even highly persuasive social media campaigns.
As these systems become more powerful, a new legal question emerges:
Can an AI company ever be held liable for aiding and abetting another person's tortious conduct?
Suppose a user asks an AI to:
- create a fake Rolex advertisement,
- generate defamatory statements about a competitor,
- produce counterfeit Louis Vuitton marketing materials,
- fabricate evidence,
- create fake celebrity endorsements,
- draft a fraudulent investment pitch,
- generate software that circumvents DRM,
- create phishing emails,
- impersonate another person,
- or manufacture false reviews.
If the AI assists, is the AI provider merely a neutral technology platform—or has it crossed the line into aiding wrongful conduct?
The law is still developing, but there are already several legal doctrines that could eventually be applied.
First, AI Is Not (Yet) a Legal Person
Today's AI models are not legal entities.
They cannot:
- be sued personally
- pay damages
- possess intent
- enter contracts
- commit crimes
Instead, any lawsuit would be directed against:
- the AI developer
- the AI company
- platform operators
- possibly enterprise customers
- in rare cases, downstream distributors
Thus, the real question becomes:
When can the company operating the AI be held liable for what the AI helped create?
The General Rule
Merely providing a tool generally does not create liability.
Courts have repeatedly held that manufacturers of neutral products are ordinarily not responsible merely because someone later misuses them.
Examples include:
- automobiles
- photocopiers
- cameras
- computers
- web browsers
- email services
AI companies will almost certainly argue:
"We simply created a general-purpose language model. The user chose to misuse it."
That argument has substantial support in existing law.
But it is not absolute.
Aiding and Abetting Liability
Many states recognize civil liability for aiding and abetting another tort.
Although formulations vary, plaintiffs generally must prove:
- a primary tort occurred;
- defendant knew about the wrongful conduct; and
- defendant substantially assisted or encouraged it.
Knowledge plus substantial assistance are the key elements.
Restatement (Second) of Torts § 876
Many jurisdictions rely upon Restatement (Second) of Torts § 876, which provides liability for persons who:
- commit a tort together,
- provide substantial assistance,
- or encourage another person's tortious conduct.
This doctrine has been used in cases involving:
- fraud
- conversion
- breach of fiduciary duty
- securities misconduct
- business torts
- civil conspiracy-like conduct
Could it someday extend to AI?
Possibly.
Example: Trademark Counterfeiting
Suppose a user asks:
"Create an advertisement identical to Louis Vuitton's official campaign. Use their logos. Make customers believe it is authentic."
If an AI:
- reproduces protected logos,
- intentionally copies trade dress,
- generates deceptive marketing materials,
- helps mimic official branding,
the AI provider may argue:
"The user alone committed infringement."
A plaintiff may argue differently:
"The AI knowingly assisted obvious trademark infringement."
The closer the assistance becomes to intentional facilitation, the stronger the plaintiff's argument becomes.
Trademark Dilution
Dilution differs from infringement.
Dilution protects famous marks from:
- blurring
- tarnishment
Suppose someone asks AI:
"Generate 500 offensive advertisements using the Nike logo."
or
"Create pornographic images featuring Disney characters."
Could the AI provider eventually face allegations that it substantially assisted trademark dilution?
Possibly—but only under unusual facts.
Most AI companies currently attempt to refuse these requests.
Those safety systems matter.
Defamation
Suppose a user asks:
"Write a fake news article accusing my competitor of embezzlement."
If the AI:
- invents criminal accusations,
- fabricates quotes,
- creates false interviews,
- manufactures fake evidence,
the injured party could sue the human publisher.
But could they also sue the AI company?
That question becomes more interesting if:
- the prompts clearly reveal malicious intent;
- the AI repeatedly assists despite obvious warning signs;
- the company knows its safeguards routinely fail;
- the company profits from encouraging abusive uses.
Deepfake Defamation
Deepfakes present perhaps the strongest future risk.
Imagine asking AI:
"Create a video showing my former business partner taking bribes."
If the video appears authentic and destroys the victim's reputation, multiple claims may arise:
- defamation
- false light
- right of publicity
- intentional infliction of emotional distress
- fraud
- unfair competition
Could plaintiffs argue the AI company substantially assisted?
The argument becomes stronger if:
- safeguards were intentionally disabled,
- the request obviously violated company policy,
- identical abuse repeatedly occurred.
Right of Publicity
Many states protect:
- names
- likenesses
- voices
- identities
Suppose someone asks:
"Generate Tom Cruise endorsing my cryptocurrency."
If AI creates a convincing fake endorsement, liability could potentially involve:
- the user
- advertisers
- distributors
- perhaps the AI platform under certain facts
Many AI companies therefore restrict celebrity impersonations.
Copyright Infringement
Copyright presents a different analysis.
If AI merely generates original content inspired by prompts, liability is less likely.
But suppose AI knowingly:
- reproduces entire copyrighted books,
- recreates Disney artwork pixel-for-pixel,
- generates complete copyrighted photographs,
- outputs proprietary software source code.
Could assisting those acts create secondary copyright liability?
Perhaps.
Courts already recognize doctrines including:
- contributory infringement;
- inducement; and
- vicarious liability.
Those existing doctrines may prove more useful than aiding-and-abetting theories.
Contributory Copyright Infringement
The Supreme Court's decision in MGM Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) remains one of the leading cases.
The Court held that a technology provider can incur liability when it intentionally induces infringement.
That reasoning may influence future AI litigation.
Trademark Secondary Liability
Trademark law already recognizes:
- contributory infringement
- contributory counterfeiting
- inducement
The Supreme Court recognized contributory trademark liability in Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844 (1982), holding that one who intentionally induces another to infringe a trademark, or continues supplying a product to one known to be engaging in infringement, may be liable.
Those doctrines may fit AI cases more naturally than general aiding-and-abetting claims.
Fraud
Suppose AI generates:
- forged bank records
- fake invoices
- fabricated contracts
- counterfeit appraisals
- fake insurance claims
The primary fraud belongs to the user.
But repeated assistance after obvious notice could eventually raise aiding-and-abetting arguments.
Product Liability
Another developing theory asks whether AI itself constitutes a defective product.
Some plaintiffs have alleged:
- negligent design;
- failure to warn;
- inadequate safety features;
- foreseeable misuse.
These cases are still in their infancy.
Negligence
Plaintiffs might argue:
The AI company failed to exercise reasonable care by:
- removing safety filters,
- ignoring repeated abuse,
- encouraging unlawful prompts,
- failing to monitor foreseeable misuse,
- marketing the system for dangerous applications.
Those claims differ from aiding-and-abetting liability but may appear alongside it.
Section 230
Some defendants may argue that 47 U.S.C. § 230 protects them.
Whether Section 230 applies to AI-generated outputs remains unsettled.
Traditional platforms hosting user-generated content often receive substantial protection.
When an AI itself generates new expressive content, courts may conclude that Section 230 offers less protection because the platform is contributing to—or creating—the content rather than merely publishing a user's speech. The scope of Section 230 in the generative AI context remains an evolving issue.
Does Intent Matter?
Absolutely.
Courts traditionally distinguish between:
Neutral Assistance
Examples:
- grammar correction
- image resizing
- summarization
- translation
- legal research
- coding assistance
These ordinarily would not create liability.
Purposeful Assistance
Examples:
- "Help me counterfeit this Rolex."
- "Generate fake evidence."
- "Create a forged signature."
- "Write false accusations I can publish."
- "Create fake invoices."
The more clearly unlawful the requested conduct, the stronger the argument that providing substantial assistance after obvious notice could expose an AI provider to legal risk if adequate safeguards are absent or intentionally bypassed.
Existing AI Litigation
As of today, most lawsuits involving generative AI have focused on:
- copyright training data;
- copyright outputs;
- privacy;
- biometric rights;
- consumer protection;
- unfair competition;
- defamation;
- right of publicity.
There are very few reported decisions squarely addressing civil aiding-and-abetting liability against AI developers based on generative outputs. The doctrine remains largely untested in this context.
Practical Reality
Major AI companies have implemented extensive safeguards that attempt to refuse requests involving:
- fraud,
- impersonation,
- counterfeit goods,
- trademark misuse,
- malicious code,
- phishing,
- deepfake abuse,
- election interference,
- child exploitation,
- violent crime.
These safeguards serve not only safety goals but also help demonstrate that the provider is not intentionally encouraging unlawful conduct, reducing the likelihood of aiding-and-abetting or inducement claims.
What Courts May Eventually Examine
Future courts evaluating AI-related secondary liability are likely to consider factors such as:
- Did the provider know the user intended to commit a tort?
- Were the prompts plainly unlawful?
- Did the AI repeatedly assist despite obvious warning signs?
- Did the provider have effective safeguards?
- Were those safeguards intentionally disabled or circumvented?
- Did the provider financially benefit from encouraging unlawful uses?
- Did the provider materially contribute to the specific wrongful content?
- Was the AI functioning as a neutral tool or as an active participant in the misconduct?
Key Takeaways
Artificial intelligence is unlikely to face liability merely because someone misuses it. However, AI companies are not necessarily immune from traditional tort principles.
As AI systems become more autonomous and capable of generating highly targeted content, plaintiffs may increasingly invoke theories such as:
- aiding and abetting under Restatement (Second) of Torts § 876;
- contributory copyright infringement;
- contributory trademark infringement;
- inducement;
- negligent design;
- product liability;
- fraud-related assistance; and
- unfair competition.
Whether those theories succeed will depend heavily on the facts, particularly the provider's knowledge, the nature of the assistance, the existence of meaningful safeguards, and the degree to which the AI materially contributed to the alleged wrongdoing.
At present, there is no settled rule that generative AI providers are liable for aiding and abetting users' torts simply because their systems generated requested content. But as litigation over deepfakes, AI-generated counterfeits, impersonation, and defamatory outputs continues to expand, courts will almost certainly be asked to define where neutral assistance ends and actionable participation begins.
How Vondran Legal® Can Help
Vondran Legal® represents businesses, creators, technology companies, and individuals in disputes involving artificial intelligence and intellectual property, including:
- AI-generated copyright and trademark disputes
- Deepfake and right of publicity claims
- Online defamation and false advertising
- DMCA takedown and counter-notice matters
- Trademark dilution and counterfeit enforcement
- Software licensing and technology litigation
- Unfair competition and business torts
- Internet platform and AI-related disputes
If your business is facing legal issues involving AI-generated content—or if you believe an AI system has been used to facilitate trademark infringement, copyright infringement, defamation, or another tort—experienced legal counsel can help evaluate potential claims, defenses, and emerging legal theories in this rapidly developing area.
