Copyright Conundrum: Navigating the Challenges of AI-Generated Content

Last night, I spoke at The Rocky Mountain AI Interest Group (RMAIIG) on the intriguing topic of securing rights in works generated using AI tools and the challenges associated with protecting AI-assisted content. I've been working as an attorney since 1998, specializing in helping individuals and businesses protect their intellectual property. My firm mainly deals with trademarks but also handles copyright issues, and I was thrilled when creator Jason Allen walked into my office last year, requesting assistance with protection of his gorgeous work that won the Colorado State Fair, Theatre D'Opera Spatial. (If you'd like to see the Requests for Reconsideration and Refusals between us and the Copyright Office, please sign up at https://www.tmbtq.com/copyrightform and you'll receive the documents when they are released).

During the presentation, we took a step back to describe the different types of intellectual property (patents, copyrights, trademarks, and trade secrets), then delved into what copyright entails and why securing copyright registration is crucial. We also explored whether AI should be considered a tool or a creator, using Theatre D’Opera Spatial as an illustrative case.

Identifying Intellectual Property: Intellectual property, unlike tangible assets like real estate, includes intangible creations that may or may not require formal registration. It provides a competitive edge and encompasses inventions, creative works, symbols, names, images, and designs.

Types of Intellectual Property:

Copyright: What Is A Copyright? Copyright applies to "original works of authorship," such as literary and dramatic works. We discussed how copyright automatically protects a work but offers enhanced damages if registered. However, it's important to note that human authorship is required by law.

Copyright Owners' Exclusive Rights: Copyright owners enjoy a bundle of exclusive rights, including the ability to reproduce, prepare derivative works, distribute, and perform the work publicly. These rights come with statutory damages for infringement if the copyright is registered.

Why Registration Matters: Registration with the U.S. Copyright Office can significantly impact potential damages for infringement, ranging from $750 to $30,000 per infringement. The level of damages can decrease for inadvertent infringements or increase for willful ones.

What Is Artificial Intelligence (AI)? We defined artificial intelligence (AI) as the simulation of human intelligence through software-coded heuristics. The definition of "artificial" is "made or produced by humans, rather than occuring naturally." Additionally, we discussed AI tools, which are software applications that leverage AI algorithms to perform specific tasks and solve problems.

Who owns the copyright in AI-generated works? This is a contentious issue. The Copyright Office has created an existential question about ownership versus creatorship, which we explored in the context of the Theatre D’Opera Spatial case. Theatre D’Opera Spatial, was created by Jason Allen using the Midjourney tool. The creation involved hundreds of prompts, upscaling, and further refinement of the image after it was generated. Jason applied for copyright registration, but the Copyright Office raised concerns regarding human input.

Why the Copyright Office is wrong... We discussed the Copyright Office's initial refusal, and why their stance deeming AI-assisted works as "lacking human input" may not accurately reflect the nature of AI-generated works. We highlighted Midjourney's reliance on human input and challenged the Copyright Office's interpretation. We discussed our First and Second Request for Reconsideration, and the Copyright Office's continued refusal (and indication that the prompts themselves may be registrable, but the output of the prompts is not).

In the meantime... We touched on the Copyright Registration Guidance for Works Containing Material Generated by Artificial Intelligence. (88 Fed. Reg. 16,190, 16,192 (Mar. 16, 2023)).

Best Practices for Creators: We outlined best practices for creators, including understanding AI's role, checking licensing agreements, creating custom AI models, keeping records, adding human creativity, watermarking, metadata usage, copyright registration, explicit licensing, collaboration agreements, staying informed about evolving laws, seeking legal advice, monitoring usage, educating audiences, considering ethical implications, and adhering to community guidelines. We discussed the numerous public policy reasons why the Copyright Office should allow registration of AI-assisted works.

Challenges and Future Direction: We recognized the ongoing challenges in defining the boundary between human and AI creativity. As AI technology evolves, legal frameworks may need to adapt, potentially leading to AI-specific legislation, global agreements, and refinements in fair use policies. Creators and stakeholders must stay informed about the evolving legal landscape surrounding AI-generated content to protect their rights effectively. Consulting legal experts can provide clarity in specific cases.