Creatives, Copyright, and AI

Update: Creatives, Copyright, and Artificial Intelligence.

?If you’ve paid any attention to the internet lately, you will have noticed the explosion of generative artificial intelligence. ChatGPT. DALL-E 2. Nightcafe. Bard. Stories and images and video brought into existence from a few prompts without the benefit of the human talent to write or draw or act. You might also have noticed that unions representing humans who write, draw, and act for a living went on strike over, among other things, generative AI. Leaving aside the chaos caused by a pause in scripted television and filming of the latest Mission Impossible sequel, the economic disruption of AI is just getting started and won’t be limited to the entertainment industry. The entertainment industry, however, is a good place to start examining how the Executive and Judicial branches of our government are dealing with the disruption AI can bring to intellectual property rights. (The legislative branch is, surprise, a nonfactor at this point).

?What Human Creatives Want

Copyright, the property right in an original work of authorship fixed in a tangible form of expression, is enshrined in the US Constitution to “promote the Progress of Science and useful Arts”.[1] Copyright gives the copyright holder exclusive rights regarding many aspects of reproduction, sale, performance, distribution, and the creation of derivative works. This exclusivity is not absolute, but at a practical level it enables creators to profit from their work. ?If you want Queen Latifah’s voice to advertise your product, you have to pay The Queen. Obviously, the use of AI to create works that replicate, mimic, or are comparable to the work of human creatives is a direct threat to their livelihoods. To add insult to economic injury, creatives are seeing their work used to train the AI.

For creatives, consent and compensation are pretty high priorities. For example, the Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA) strike against Alliance of Motion Picture and Television Producers highlighted the artists concerns over compensation for replication of an artist’s performance, image or voice using AI or the use of an artist’s voice, image, or performance to train AI designed to generate new material. Similarly, the Writers Guild of America (WGA) took labor action in response to the threat of “original” written material produced by generative artificial intelligence (e.g., ChatGPT) and the unapproved and uncompensated use of the work of WGA members to train AI. (It goes without saying that parties such as Alliance of Motion Picture and Television Producers would like to minimize both the need for approval and the amount of compensation.)

Labor actions may set the boundaries for the use of AI in some contexts, but it is an incredibly inefficient way to create national policy on an issue that impacts every industry from acting to accounting.

?Executive Order on Copyright

Into that breach leaps the executive branch. On October 30th, President Biden proved that he pays attention to the internet and issued his Executive Order On the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence. The Order addressed the incorporation of AI into many aspects of our economic, cultural, and national security institutions. However, barely mentioned was the interaction between AI and copyright.? Instead, the Order prepares the way for further study to inform future executive orders:

(b) within 270 days of the date of this order or 180 days after the?United States Copyright Office of the Library of Congress publishes its forthcoming AI study that will address copyright issues raised by AI, whichever comes later, consult with the Director of the United States Copyright Office and issue recommendations to the President on potential executive actions relating to copyright and AI.? The recommendations shall address any copyright and related issues discussed in the United States Copyright Office’s study, including the scope of protection for works produced using AI and the treatment of copyrighted works in AI training.

?The Order appropriately defers to the Copyright Office to determine which copyright related issues will be prioritized and how they will be addressed. However, the timeline it sets,? 270 days after the issue of the Order or 180 after the Copyright Office publishes its study of the matter, is an eternity in such a rapidly advancing area of technology.? In addition, right now the Copyright Office and courts are creating policies and precedents that will ultimately shape the parameters of any later executive order.

Copyright Office Guidance

While generative AI has only recently come to the attention of most Americans, the U.S. Copyright Office has been examining the issue for several years. That includes a 2020 symposium in partnership with the World Intellectual Property Organization (WIPO) that examined how the creative community was using artificial intelligence to create original works. Most recently, the Office issued a notice of inquiry in the Federal Register on copyright and AI, “seeking factual information and views on the use of copyrighted works to train AI models, the appropriate levels of transparency and disclosure with respect to the use of copyrighted works, the legal status of AI-generated outputs, and the appropriate treatment of AI-generated outputs that mimic personal attributes of human artists.”[2]

??????????? Since registration waits for no one, in the Interim, the Copyright Office issued a policy statement on registration of Al-generative works, affirming the position found in the Compendium of Copyright Office Practices. Notably, the statement reaffirmed the requirement for human authorship[3]and established that creative works generated solely in response to user prompts cannot be copyrighted. Unfortunately, the statement leaves unanswered two very important questions:

·????? How much AI input is permissible?

·????? Are the underlying prompts copyrightable?

Court Developments

While the Copyright Office is further refining its stance on the protectability of AI generated works, cases relying on existing precedent and current Office guidance are making their way through the court system.? The same day Biden issued his executive order, a U.S. District Court Judge dismissed the majority of claims against AI companies StabilityAI, Midjourney, and DeviantArt brought by artists alleging the defendants’ AI systems infringed on their copyright. Unfortunately, the grounds for dismissal (with leave to file again) was the failure of the plaintiffs to allege specific injury. Dismissal on these grounds provides little clarity on the underlying issues.

This is only one of the many copyright/AI cases making their way through the system. Not surprisingly, at this stage, many of the questions unaddressed by President Biden’s Order and unanswered by Copyright Office guidance feature prominently, particularly the matter of how much AI is permissible in a copyrighted work (i.e., what is de minimis). Perhaps most significantly, courts will soon weigh in on the availability of “fair use” as a defense to the infringement when using copyrighted material to train AI.

What it all means

AI will inevitably impact virtually every public and private sector activity and the potential for disruption can’t be understated. Copyright and intellectual property may seem like minor matters when compared to (cue "Terminator" theme song) lethal autonomous weapons, AI bias, social engineering, and AI hallucinations, but for creatives and those relying on their talent, it is a real and ongoing threat. Unfortunately, if we want to see any national policies in place, we may need to replace Congress with AI.

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[1] United States Constitution, Art. I, Section 8

[2] Federal Register/Vol. 88, No. 167/Wednesday, August 30, 2023/Notices

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[3] Compendium of U.S. Copyright Office Practices, Third Edition, Section 306. “The U.S. Copyright Office will register an original work of authorship, provided the work was created by a human being.”