Generative AI Faces Uphill Battle in Earning Copyright Protection

They explained that there are lots of issues at play that make it challenging to copyright this type of content. The dangers of AI have been discussed thoroughly in the past few months and part of the ensuing debate has centred on the ownership and authorship of AI-generated content. On Feb. 21, 2023, the USCO responded to author Kristina Kashtanova’s appeal to copyright the comic book “Zarya of the Dawn.” Zarya of the Dawn” is no ordinary comic book. Kristina Kashtanova wrote its text and arranged its content, but used Midjourney — a generative AI program — to create the images. The USCO found that while the text and “selection, coordination, and arrangement of the Work’s written and visual elements” are copyrightable, the images themselves are not. As PetaPixel highlights, Adobe and Shutterstock have both announced official support for images created using AI, allowing artists to make a living from these images.

• Most systems are trained on huge amounts of content scraped from the web; be that text, code, or imagery.
• One point of contention in that dispute concerns whether studios will be able to use AI for various purposes — from using “digital replicas” of performers to having generative AI write scripts that writers would then adapt for a movie.
• The Copyright Office has launched an initiative to study generative AI and copyright, and today issued a notice of inquiry to solicit input on the issues involved.

And, although the book isn’t closed on this question, there are considerations that suggest it doesn’t. Sufficiently short phrases — which generative AI often produces in the software development context — are not copyrightable and therefore neither subject to copyright nor any open source license. For more information on this topic, advice on intellectual property considerations for AI-generated works, or assistance submitting comments on the Copyright Office’s notice of inquiry, please contact one of the authors below or your regular McDermott lawyer. Media descriptions of AI systems suggest that the AI chops ingested works into small pieces, which the AI then recombines into new works in response to user prompts. Instead, through computational analysis, it discerns patterns, trends, and relationships, and uses them to create statistical models which in turn generate new works in response to user prompts.

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Any presumptions in favor of or against fair use when conducting conditional fair use inquiries could easily impact the size and scope of GAIs moving forward. For example, a presumption against fair use when analyzing prompts used to generate works may result in a shift towards very generalized, prompt-heavy GAIs. In addition, questions regarding remittance structures, vicarious liability and inducement of copyright infringement may impact the development of GAIs. This documentation requirement will go far beyond any similar or proposed regulations today. Given the international nature of the Internet, there is some risk that documentation requirements will become de facto global requirements.

The U.S. Supreme Court, siding with photographer Napoleon Sarony, determined that photographs of famed writer Oscar Wilde showed the photographer’s personal judgment, style, and creativity and were eligible to be copyrighted. Currently, the ownership of copyright is as debatable as the eligibility of the generated works. Both vary from country to country and are open to reform according to the improvements in generative AI use.

Can copyright-protected data be used as training data?

There are various possible answers to the fundamental question of “who owns” the AI-generated material. Moreover, a third party could argue that the AI-generated material infringes that party’s copyrighted material—for example, that the AI-generated output uses or is a derivative of that third party’s original work. See 17 U.S.C. § 106 (granting a copyright owner the “exclusive right” to copy the copyrighted work and create derivative works based on it). The recent expansion of the scope and capabilities of generative artificial intelligence (AI) tools and platforms has introduced a number of legal challenges. These challenges can represent a double-edged sword, both for those seeking copyright protection and those accused of copyright infringement involving works and materials created using generative AI tools and platforms. As the applications of generative AI tools and platforms continue to expand and accelerate, the United States Copyright Office (USCO) and pending litigation in U.S. district courts have already started to weigh in on critical issues concerning copyright ownership, registration and infringement.

The US Copyright Office is inching closer to creating new rules and regulations around generative AI and how the technology uses the work of authors and other creators. “Copyright law is the only law that’s already in existence that could bring generative AI systems to their knees. The Copyright Office in February granted a limited copyright registration for an AI-assisted graphic novel, which attorneys said could crack the door open further to protect such works.

Yakov Livshits
Founder of the DevEducation project
A prolific businessman and investor, and the founder of several large companies in Israel, the USA and the UAE, Yakov’s corporation comprises over 2,000 employees all over the world. He graduated from the University of Oxford in the UK and Technion in Israel, before moving on to study complex systems science at NECSI in the USA. Yakov has a Masters in Software Development.

Humans creating the training data as copyright holders

Article 28b, paragraph 5a, then imposes two specific obligations with copyright implications on providers of generative AI models, in addition to their remaining obligations as providers of foundation models. The second refers to safeguards and can be viewed as a content moderation obligation. Crucially, providers must ensure that these requirements are met prior to making the foundation model (including generative AI) available on the market or putting it into service.

There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. One New York Times reporter interviewed for “The Daily” noted that when she asked ChatGPT to write an article in her style, it produced a sentence that included the phrase “bastion of free expression,” which she had used in several articles. Moreover, this phrase is not original to this reporter; it has been used by many writers at least since the 1960s. Some copyright industry trade groups argue that as a practical matter, artists cannot use these bot exclusion protocols because doing so would prevent their websites from being crawled by search engine bots. While this tradeoff exists, the artist still has a choice of how she wants to interact with AI and the Internet.

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Some creators and companies believe their content has been stolen by generative AI companies, and are now seeking to strip these companies of the protective shield of fair use in a series of pending lawsuits. Given this highly artistic output, it is hard to give authorship solely to the programmer while bypassing the immense input from the real artist Rembrandt. While AI systems do not contain literal copies of the training data, they do sometimes manage to recreate works from the training data, complicating this legal analysis. Supreme Court weighed in on Yakov Livshits the issue and found that cameras served as tools that an artist could use to give an idea visible form; the “masterminds” behind the cameras, the court ruled, should own the photographs they create. While the EU’s AI Act is the closest EU countries have gotten to regulate AI use, specific laws for copyrighting AI-generated content are yet to be established and until now it might just be dealt with on a case-by-case basis. AI-generated art became a relevant controversy after an AI-generated work of art won the Colorado State Fair’s art competition in 2022.

Considering that, as of today, there are no copyright laws that address AI-generated content specifically, and the situation is still solved on a case by case basis in court, people may need to consider how they are using generative AI in the process behind their creative work to avoid copyright issues later. The main reasons why it’s challenging to copyright AI-generated content are the ambiguities regarding human involvement and intentions, the training data the AI tool could have used in generating the output, and various Yakov Livshits questions regarding ownership. Regarding the second issue, the uncertainty lies in where and how to draw the line between human creation and AI generation. The Copyright Office and US courts have repeatedly held that AI-generated work cannot be owned/authored by the AI itself because a valid copyright requires human authorship and creativity. However, the degree of human-authored contributions, or the level of control a human programmer has over the AI, may affect the copyrightability of the AI-generated work.

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The output of an AI system might infringe the copyright of a particular artist if the system had access to one of the artist’s works (i.e., the AI system ingested the work) and the output of the AI system is “substantially similar in protected expression” to that work. Courts have long dealt with claims that one work is substantially similar to another. Where these cases get complicated is when the works are not identical, but have certain similarities.