HOW ARTIFICIAL INTELLIGENCE HAS IMPACTED THE CREATION OF CONTENT AND THE LAW
Author: Missy Dieckman-Meyer, Senior Editor
The internet is a system of interconnected digital networks that link billions of devices worldwide.[i] These networks provide a range of information, resources, and services which have aided in the digitalization of society.[ii] Digital and technological displacement in society have resulted in developments that have been prompted by the internet, specifically Artificial Intelligence (“AI”). The AI platform is a smart computer system that lives online and can both place and simulate human intelligence within machines.[iii] This simulation of intelligence has allowed AI to develop algorithms to study and produce content based upon accumulated data, with the newest form of artificial intelligence being “Generative AI.”[iv]
Generative AI has significantly altered the way we live, work, and create in just a small amount of time, as these systems are trained to identify, learn, and replicate patterns of data.[v] The ability of these systems to study and replicate the physical work of humans by analyzing data allows them to produce outputs.[vi] Outputs are simply a cumulation of human-made work, much of which has been scraped from the internet and is copyright-protected in one way or another.[vii] Thus, the content that is being produced by Generative AI has called into question the legal protections assigned to physical works while demanding a better understanding of ownership, fairness, and the very nature of creativity.[viii]
The challenging and complicated legal questions that are being prompted due to the spike in AI-generated content have specifically targeted copyright law. Under 17 U.S.C. 106, the owner of a copyright has the exclusive right to do and to authorize the reproduction, adaptation, publication, performance, and exhibition of their copyrighted work.[ix] However, these exclusive rights have been called into question within society’s digital environment as the boundaries between content that is copyrightable and infringeable have become indistinguishable. These blurred boundaries have been brought to the forefront of the legal field due to the unprecedented ability of Generative AI to learn and replicate content.[x]
These emerging copyright issues are not necessarily new, but they have been vaguely addressed until recently. On March 15, 2023, the U.S. Copyright Office announced that works created with the assistance of AI may be copyrightable, provided the work involves sufficient human authorship.[xi] Sufficient human authorship is to occur when a human selects, arranges, or modifies AI-generated material in a creative way.[xii] By contrast, an AI program that is simply prompted to produce designated content may require human involvement, but in such case there is no sufficient human authorship.[xiii] The murky designation of human versus machine authorship may leave a work’s copyrightability to depend upon how much control or influence the human author has on the machine’s outputs, as there is no copyright protection afforded to works created by machines.[xiv] Therefore, copyright protections will depend on whether Generative AI’s contributions are the result of mechanical reproduction or the author’s own mental conception, leaving the answer to depend on how the AI tools operate and are used to create the final work product.[xv]
However, with sufficient human authorship being copyrightable even when the content is generated by a machine, the AI-generated content has inspired many copyright infringement suits. While copyrighted work is to be legally protected, the emergence of Generative AI has created a newer legal conundrum by creating replicatory outputs that resemble, and possibly infringe, existing copyrighted works.[xvi]
The ability of Generative AI programs to create replicatory content has not necessarily been deemed an infringement under the law, as the copying of an artist’s style is not prohibited while the copying of specific works is restricted.[xvii] Thus, while artistic style is copyrightable and distinguishable, the law has been illusive when enforcing protections for such stylistically similar works because the replication of an idea, technique, or process can be almost impossible to protect.[xviii] These complex and inefficient protections are not unenforceable but may only be afforded when artists are able to show that the AI systems had access to their works and created substantially similar outputs.[xix] Therefore, the ability of Generative AI to uniquely mass-produce works that copy artistic styles has and may continue to allow electronically produced works to undercut the value of human artists’ work.[xx]
These impactful capabilities of Generative AI have already prompted a series of legal questions and lawsuits, which are first-of-its-kind.[xxi] One example of a developing copyright lawsuit is Getty Images v. Stability AI.[xxii] This suit was prompted when Stability AI allegedly used more than twelve million of Getty Images photos without permission or compensation.[xxiii] The usage of the Getty copyrighted images, associated text, and meta-data by Stability AI is arguably unlawful as its outputs would visually and physically alter the images, commonly violating trademark and copyright laws.[xxiv] While this case remains unresolved in an unprecedented legal territory, making it impossible to predict any outcome, it is an example of one of many newly litigated issues to emerge due to the expansion of the internet and AI.[xxv]
With the legal landscape up in the air surrounding our digital environment, Generative AI, and U.S. copyright law, there will likely be many more first-impression lawsuits that emerge due to the challenges that this technology has created for content creators.[xxvi] These challenges can be specifically seen where AI systems can analyze, study, and mimic the particular style of artists’ work, threatening to essentially replace such creators with AI.[xxvii] The ability of AI to replace artists through a stylistic copyright “loophole” has allowed technology to mimic artists without the obligation of commissioning or licensing their original works.[xxviii] This human versus machine competition has stripped creators of their value and challenges the law, leaving the legal field to reckon with how powerful technology is to interact and be governed within today’s digital environment.[xxix] Therefore, these AI systems have left the legal landscape far from clear, with both the creators of AI tools, the individuals who use them, and the physical artists confronting copyright questions that have yet to be answered.[xxx]
[i] The Internet, Penn State University, Press Books, https://psu.pb.unizin.org/ist110/chapter/1-3-the-internet/.
[ii] Id.
[iii] Mike Kaput, What is Artificial Intelligence for Social Media?, Marketing Artificial Intelligence Institute (April 18, 2022), https://www.marketingaiinstitute.com/blog/what-is-artificial-intelligence-for-social-media.
[iv] See generally, Mike Kaput, What is Artificial Intelligence for Social Media?, Marketing Artificial Intelligence Institute (April 18, 2022), https://www.marketingaiinstitute.com/blog/what-is-artificial-intelligence-for-social-media; Margaret Rouse, Generative AI, techopedia (June 27, 2023), https://www.techopedia.com/definition/34633/generative-ai.
[v] Ellen Glover, AI-Generated Content and Copyright Law: What We Know, Builtin (April 28, 2023), https://builtin.com/artificial-intelligence/ai-copyright; Matt White, A Brief History of Generative AI, Medium (Jan. 7, 2023), https://matthewdwhite.medium.com/a-brief-history-of-generative-ai-cb1837e67106.
[vi] See generally, Ellen Glover, AI-Generated Content and Copyright Law: What We Know, Builtin (April 28, 2023), https://builtin.com/artificial-intelligence/ai-copyright.
[vii] Id.
[viii] Id.
[ix] See generally, 17 U.S.C. 106.
[x] See generally, Ellen Glover, AI-Generated Content and Copyright Law: What We Know, Builtin (April 28, 2023), https://builtin.com/artificial-intelligence/ai-copyright.
[xi] Evan Gourvitz and S. Lara Ameri, Can Works Created with AI be Copyrighted? Copyright Office Issues Formal Guidance, Ropes & Gray (March 17, 2023), https://www.ropesgray.com/en/newsroom/alerts/2023/03/can-works-created-with-ai-be-copyrighted-copyright-office-issues-formal-guidance#:~:text=On%20March%2015%2C%202023%2C%20the,by%20Artificial%20Intelligence%2C%2088%20Fed. (This decision is to be codified as 37 C.F.R. 202).
[xii] Id.
[xiii] Evan Gourvitz and S. Lara Ameri, Can Works Created with AI be Copyrighted? Copyright Office Issues Formal Guidance, ropes & gray (March 17, 2023), https://www.ropesgray.com/en/newsroom/alerts/2023/03/can-works-created-with-ai-be-copyrighted-copyright-office-issues-formal-guidance#:~:text=On%20March%2015%2C%202023%2C%20the,by%20Artificial%20Intelligence%2C%2088%20Fed; Ellen Glover, AI-Generated Content and Copyright Law: What We Know, Builtin (April 28, 2023), https://builtin.com/artificial-intelligence/ai-copyright.
[xiv] Ellen Glover, AI-Generated Content and Copyright Law: What We Know, Builtin (April 28, 2023), https://builtin.com/artificial-intelligence/ai-copyright.
[xv] Id.
[xvi] See generally, 17 U.S.C. 106; Riddhi Setty and Isaiah Poritz, ‘Wild West’ of Generative AI Poses Novel Copyright Questions, Bloomberg Law (Nov. 18, 2022), https://news.bloomberglaw.com/ip-law/wild-west-of-generative-ai-raises-novel-copyright-questions?context=article-related.
[xvii] Congressional Research Service, Generative Artificial Intelligence and Copyright Law, Legal Sidebar (May 11, 2023), https://crsreports.congress.gov/product/pdf/LSB/LSB10922#:~:text=AI%20programs%20might%20also%20infringe,created%20%E2%80%9Csubstantially%20similar%E2%80%9D%20outputs.
[xviii] Riddhi Setty, First AI Art Generator Lawsuits Threaten Future of Emerging Tech, Bloomberg Law (Jan. 20, 2023), https://news.bloomberglaw.com/ip-law/first-ai-art-generator-lawsuits-threaten-future-of-emerging-tech?context=article-related.
[xix] Congressional Research Service, Generative Artificial Intelligence and Copyright Law, Legal Sidebar (May 11, 2023), https://crsreports.congress.gov/product/pdf/LSB/LSB10922#:~:text=AI%20programs%20might%20also%20infringe,created%20%E2%80%9Csubstantially%20similar%E2%80%9D%20outputs.
[xx] Id.
[xxi] Riddhi Setty, Getty Images Sues Stability AI Over Art Generator IP Violations, Bloomberg Law (Feb. 6, 2023), https://news.bloomberglaw.com/ip-law/getty-images-sues-stability-ai-over-art-generator-ip-violations.
[xxii] Ellen Glover, AI-Generated Content and Copyright Law: What We Know, Builtin (April 28, 2023), https://builtin.com/artificial-intelligence/ai-copyright.
[xxiii] Riddhi Setty, Getty Images Sues Stability AI Over Art Generator IP Violations, Bloomberg Law (Feb. 6, 2023), https://news.bloomberglaw.com/ip-law/getty-images-sues-stability-ai-over-art-generator-ip-violations.
[xxiv] Riddhi Setty, Getty Images Sues Stability AI Over Art Generator IP Violations, Bloomberg Law (Feb. 6, 2023), https://news.bloomberglaw.com/ip-law/getty-images-sues-stability-ai-over-art-generator-ip-violations; James Vincent, Getty Images Sues AI Art Generator Stable Diffusion in the US for Copyright Infringement, The Verge (Feb. 6, 2023), https://www.theverge.com/2023/2/6/23587393/ai-art-copyright-lawsuit-getty-images-stable-diffusion.
[xxv] See generally, James Vincent, Getty Images Sues AI Art Generator Stable Diffusion in the US for Copyright Infringement, The Verge (Feb. 6, 2023), https://www.theverge.com/2023/2/6/23587393/ai-art-copyright-lawsuit-getty-images-stable-diffusion.
[xxvi] See generally, Riddhi Setty, First AI Art Generator Lawsuits Threaten Future of Emerging Tech, bloomberg law (Jan. 20, 2023), https://news.bloomberglaw.com/ip-law/first-ai-art-generator-lawsuits-threaten-future-of-emerging-tech?context=article-related.
[xxvii] Ellen Glover, AI-Generated Content and Copyright Law: What We Know, Builtin (April 28, 2023), https://builtin.com/artificial-intelligence/ai-copyright.
[xxviii] Riddhi Setty, First AI Art Generator Lawsuits Threaten Future of Emerging Tech, Bloomberg Law (Jan. 20, 2023), https://news.bloomberglaw.com/ip-law/first-ai-art-generator-lawsuits-threaten-future-of-emerging-tech?context=article-related.
[xxix] See generally, Id.
[xxx] Riddhi Setty and Isaiah Poritz, ‘Wild West’ of Generative AI Poses Novel Copyright Questions, Bloomberg Law (Nov. 18, 2022), https://news.bloomberglaw.com/ip-law/wild-west-of-generative-ai-raises-novel-copyright-questions?context=article-related.