AI Creations Are No Laughing Matter
Why did the AI-generated song win an award? Because it had the perfect pitch - and the perfect algorithm for creating catchy lyrics!
That was what ChatGPT came up with when I asked it to write a joke about using AI for creative tasks. That’s right; we’re going to talk more about AI. And this week, it’s time to put your best lawyer face on.
AI and the Long Arm of the Law
Last week I opened up the latest can of worms (where did I get all these, anyway?) and talked about AI and its impact on the creative space. As I noted, AI work requires inputs and isn’t capable of true creativity at a fundamental level - at least, not yet. But all of us are influenced by what we’ve seen and heard, and we can copyright new works despite these influences. So what do we know about the legality of using AI, and what questions remain to be answered?
Can you copyright AI work?
The current Copyright Act has been interpreted by the courts to mean that only human-authored works can be copyrighted. A minimal amount of creativity is required to have something that is legally defensible, which we’re all familiar with in books, TV shows, and paintings. Photos are also copyrightable despite being depictions of reality because of how they are presented, how the camera is used, and so on. But only human-created photos -- this selfie from a macaque was ruled not copyrightable.
To this point, copyright applications have been denied when the applicant disclosed that it was AI-generated, and some might be canceled after it becomes clear that AI was used to create the work.
Can you use copyrighted work to train AI and create new work?
This is more of a gray area. Some say it’s fair use to input massive data sets of public information to train a new AI and create a portrait of the Hamburglar in the style of van Gogh like I just did…
… while others say it’s a clear copyright violation. There have been some high-profile cases over the years involving companies like Google, but nobody knows what the future will hold. The fact is, these models now exist, for better or worse.
One question at the heart of the debate is whether AI-created works are derivative, like when someone makes a movie from a book, because everything from an AI comes from existing properties in some form. Some will be open to a fair use defense, but you can’t generalize for the whole AI industry. These things are generally looked at on a case-by-case basis.
So can we use it or not?
I view AI as a helpful tool, something that takes your input and gives you something unique. You might ask ChatGPT for a social media post and use that as a jumping-off point for your writing, for example. There aren’t any laws right now banning AI use. Just remember that these tools are leveraging the work of real people to build their models.
We’ll see a ton of legal cases over the next few years, so I’m sure I’ll revisit the issue.
In fact, we'll revisit it this May 8-9 at Owner Summit New Orleans when Bureau members Gabe Levine of Matchstick Legal and Dale Bertrand from Fire&Spark kick around the best uses of AI and the legal challenges. Don't miss it!
I said it last week and I'll say it again. AI is here and changes will come faster than we expect. They will impact how we work, our creative process, and how we run our companies. And while all of this is happening, the legal side of things will be fighting to catch up. One thing is for sure, it's gonna be interesting!