You ask ChatGPT (or one of a growing number of similar automated content generators) to write copy for a blog post that you post to your company’s website. The app wrote the entire copy. Later, you find that another company has lifted the post, verbatim, for use on their own site. Can you sue them for copyright infringement?
Yes, you can. But will you win? That’s a more difficult question to answer.
The issue is pretty straightforward for creators, says Jonathan Bailey, a copyright/plagiarism consultant who runs Plagiarism Today and CopyByte. “Nearly all AI systems were trained on large amounts of unlicensed but publicly available content. Some of the content was even pirated. It was then used to train AI systems, which are being used to make similar works. Many are not happy about this, and there have been dozens of lawsuits against AI firms over this issue.”
Here’s the rub: If a generative AI (GenAI) tool created the content, can “it” be held liable for copyright infringement?
The emergence and rapid adoption of generative AI (GenAI) tools like ChatGPT to create content of all kinds has created some interesting and perplexing questions related to the ownership of that content. For example, who owns the copyright to GenAI-created content?
At this point—nobody.
Ownership Issues a Gray Area For Now
The U.S. Copyright Office has made it clear that AI-generated content can’t be registered under a copyright. They say: “In the Office’s view, it is well-established that copyright can protect only material that is the product of human creativity. Most fundamentally, the term “author,” which is used in both the Constitution and the Copyright Act, excludes non-humans.”
But, the Office also acknowledges the need for additional guidance on the issue and has “launched an agency-wide initiative to delve into a wide range of these issues,” indicating that they are “seeking public input on additional legal and policy topics, including how the law should apply to the use of copyrighted works in AI training and the resulting treatment of outputs.”
There’s much debate on the topic, which is anything but clear-cut. Beth Cooper, vice president of marketing and business development at KNB Communications and a former attorney who practices contract and copyright law, disagrees with the notion that GenAI-created content shouldn’t be subject to copyright. She makes an analogy to using cameras to create images. “There are some photos that do not warrant copyright protection, and there are some that do. It depends on the creative vision of the photographer. In AI-generated works, the creativity is in the prompt writing.”
Cooper says the potential for creators’ work to be used in datasets to train GenAI models is more problematic. “Many creators are finding that their work has been included in training without their permission or compensation, and, unsurprisingly, they, by and large, don’t love that. Sure, humans can copycat their art, but AI can do it at an incredible scale. It has the potential to impact not only their livelihood but also their legacy.”
Issues for Content Creators
“The recent advancements in generative AI technology have raised a wide range of issues concerning copyright ownership, infringement, and the unauthorized use of copyrighted materials,” says Craig Smith, an IP litigator and partner at Lando & Anastasi.
While Smith points out that tech companies, including Amazon, Google, Meta, Microsoft, and OpenAI, have committed to helping ensure the “safe and transparent development of AI technology,” there is not currently any comprehensive AI legislation in the US. In October, he says, the Biden administration issued an Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence that requires federal agencies to establish standards and guidance for AI use, safety, and security. “These standards do not have the same force as actual legislation, but they will help companies think more critically about how they use and implement AI technology,” he says.
Content creators, like writers, Smith says, “complain that both the input and output of AI systems violate copyright laws.” They’re in direct conflict, though, with companies like OpenAI. “On the one side, authors argue that the use of their works to train AI models constitutes copyright infringement. Not surprisingly, AI companies disagree. OpenAI has argued that using copyrighted material to train AI models is fair use.”
Impacts Vary for Text, Audio, and Video Content
Oindrilla Mandal, a senior product manager at Electronic Arts, points out that there is a continuum in terms of the maturity of AI across text, audio, and video content. “Gen AI is very mature in the text space,” she says. “Not only can Gen AI generate quality text content, but it can also significantly reduce editing efforts. And Gen AI text identification solutions are also quite mature, so it is possible to distinguish original human-written content from AI-generated text.”
Video, though, Mandal says, is on the opposite end of the spectrum, and the solutions are not yet very mature. “While content creators can use it for editing purposes, generating high-quality Gen AI video from scratch is significantly harder and more expensive. Hence, its usage is currently limited, except when it is used to modify existing video media content.”
AI-generated audio, like voice or music, is in a gray area between these two worlds, Mandal says. “AI audio generation is relatively ubiquitous and has wide applications in entertainment, gaming, social media content, eBooks, and more. Currently, there are many legal issues between content creators and audio owners regarding acceptable use policies.”
Infringement Risks
A similar continuum applies in terms of copyright risks when using AI-generated text, audio, or video, Cooper notes. “Each medium brings its own set of complexities when AI is thrown into the mix,” she says. With text, the subtleties of language have led many linguists to “believe one’s choice of words and syntax are so unique as to be akin to a fingerprint.” But, she adds, “AI has the ability to generate text that mimics the style and structure of existing authors, making it incredibly hard to distinguish between original content and something that’s derivative.” A writer’s style, though, isn’t subject to copyright. Copyright protects expression, not ideas or methods.
“That said, if someone generates a work that is so close as to be considered a derivative work or generates work using unique characters or worlds, there is a potential for copyright infringement claims,” Cooper says.
There’s more danger of infringement when it comes to audio, especially music. Here, Cooper says, there’s danger “of AI-generated compositions sampling or replicating existing songs, melodies, or chords.” Even a snippet of a song can have copyright protection, she says. “Big record labels have advanced software and crackerjack legal teams to track down their owned music on the internet and make sure no one else makes a dime off of it.”
Cooper says that the same intellectual property considerations exist with video, but video presents another serious consideration—the potential for deepfakes. Deepfake videos, she says, “make it appear that someone said or did something they never did. It’s an ethical and legal minefield.”
Modern copyright law treats all types of creative content the same from a copyright standpoint from a legal perspective, says Bailey. But, he adds: “The biggest difference is that certain works, by their nature, have different rules out of practicality. For example, there are only so many notes and so many chords in music. So reusing common notes, chords, etc., is less likely to be infringing than repeating sentences verbatim.”
Content creators, say Mandal and others, need to be aware of their ownership rights. “Creators run the risk of losing ownership of their content if they either use Gen AI to create their content, or GenAI is used to modify their content by either authorized or unauthorized third parties,” she says. To mitigate these risks, she says, it’s important for content creators to be aware of GenAI copyright laws and to make sure their contracts explicitly state who owns any content being created.
In July, the US Copyright Office released Part 1 of its “Report on the legal and policy issues related to copyright and artificial intelligence (AI), addressing the topic of digital replicas.” Additional guidance is anticipated. These reports should be a “must read” for anyone creating content of any kind—and any companies using GenAI tools to generate copy.
That’s pretty much everyone these days.
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