Does Generative AI Breach Copyright Law? Baer Performance Marketing

What Does Copyright Say about Generative Models?

This means that they cannot simply reproduce something they were trained on, they have to generate something new based on it. “If we do not provide IP rights to the content generated by the AI, specifically to its designers, there is much less incentive to create such software if the result immediately enters the public domain.” Independent of ownership of the output of AI system (as between the platform operator and the user), there still may be infringement risks in the use of such output. For example, generated software code could infringe the rights of others, as will be discussed below.

Given this technological and legal backdrop, we present four broad schools of thought regarding the scope of the fair use defense that consider whether Output Works infringe Input Works. This article discusses these general viewpoints, when each viewpoint would consider an Output Work to directly infringe on any copyrights of Input Works and the challenges in that viewpoint’s implementation. The discussion below does not address the potential for vicarious infringement or inducement of infringement actions against the developers or operators of GAIs, but such topics are also important considerations for any legislature or court contemplating intellectual property issues related to GAIs.

U.S. Copyright Office Issues Guidance on Generative AI Output

The rise of generative AI will “prompt challenging questions” about how much human input into an AI program is necessary to qualify for copyright protection, Howell said, as well as how to assess the originality of AI-generated art that comes from systems trained on existing copyrighted works. Developing these audit trails would assure companies are prepared if (or, more likely, when) customers start including demands for them in contracts as a form of insurance that the vendor’s works aren’t willfully, or unintentionally, derivative without authorization. Looking further into the future, insurance companies may require these reports in order to extend traditional insurance coverages to business users whose assets include AI-generated works. Breaking down the contributions of individual artists who were included in the training data to produce an image would further support efforts to appropriately compensate contributors, and even embed the copyright of the original artist in the new creation.

In the meantime, users of AI-generated works would do well to exert caution in using generative AI. As a general proposition, we do not compensate creators for every single use of their work. We don’t let creators control whether content is read or viewed (per copyright limitations like the first-sale doctrine and space- and time-shifting); we don’t let them control if human artists “train” on their work. Indeed, aspiring artists generally train by studying and copying the works of their predecessors.

Subscribe to Law.com

The usage of current innovations such as ChatGPT and Midjourney has encouraged new engagement in the creative community. Now, anyone can use generative AI to produce creative works, such as literary, artistic, or musical. Yakov Livshits An example is the MoMA’s collection created by the artist Refik Anadol who used AI to interpret and transform the museum’s data set to create new art forms, resulting in a high-resolution dream of a modern art collection.

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.

• Either way, this may lead to an evolution of copyright laws that enable the recognition of emerging tech, like generative AI, as creative entities eligible for copyright safeguards, Sullivan added.
• Some of the pleas are open letters and social media posts, but an increasing number are lawsuits.
• Over the past few years, AI has dominated headlines, increasing awareness and intrigue about its promises and perils.
• In the U.S., much of this preservation will be incumbent on the courts, where several creators and companies are duking it out right now.

The document essentially doubles down on its stance with Zarya of the Dawn, reiterating that the term “author” is not extended to non-humans, including machines. It also states that if a human simply types in a prompt and a machine generates complex written, visual or musical works in response, the “traditional elements of authorship” have been executed by AI, a non-human. For example, in the United States, copyright laws do not protect works created solely by a machine. But if an individual can demonstrate substantial human involvement in its creation, then it is plausible they may receive copyright protection. This training data consists of prior artworks, many of which are protected by copyright law and which have been collected without artists’ knowledge or consent. Using art in this way might violate copyright law even before the AI generates a new work.

AI Tools and Resources

There’s also the risk of accidentally sharing confidential trade secrets or business information by inputting data into generative AI tools. The fast-growing field of generative AI has raised novel intellectual property issues. The Copyright Office has also rejected an artist’s bid for copyrights on images generated through the AI system Midjourney despite the artist’s argument that the system was part of their creative process. Regarding the first issue, the prevailing question is whether using copyrighted works to train generative and non-generative AI is an infringing use. Because copyright infringement requires an act of actual copying, this fact-specific inquiry heavily depends on the type of AI. Additional facts such as the collection and curation of AI datasets, training material sources and retention of records may also affect this analysis and subsequent opinions/policy.

One possible defense might be the argument that the content produced by LLMs is sufficiently different from the texts upon which they were trained so as to exonerate them from any such accusations. While the technology is being hailed within the marketing industry for its ability to supercharge and supplement human creativity, it’s also presenting some thorny legal questions. The justification used by AI researchers, startups, and multibillion-dollar tech companies alike is that using these images is covered (in the US, at least) by fair use doctrine, which aims to encourage the use of copyright-protected Yakov Livshits work to promote freedom of expression. Training generative AI models using copyrighted materials is protected under certain conditions by the fair use doctrine of the U.S. copyright statute. Another important factor to consider when assessing fair use is if academic researchers and nonprofit organizations have produced the training data and models or not. For instance, using copyrighted material for educational purposes could qualify for fair use, whereas using copyrighted material for commercial purposes without permission from the copyright holder would be considered copyright infringement.

The ruling sets a precedent for content creators, agency execs and others increasingly using these tools, and could impact the amount of human involvement in roles that AI is expected to envelop. Another approach to avoiding copyright violation issues (and plagiarism) with generative AI is to use citations and links. Citations avoid any worry about plagiarism – the original source is overtly credited – and give the user the ability to vet the source of the answer or summary item. The answers are deliberately brief so as not to be a substitute for consuming the original material from the publisher. And the answers and summary items are hot linked to the documents to make clickthrough easy. The ruling is the first in the country to establish a boundary on the legal protections for AI-generated artwork, which has exploded in popularity with the rise of products like OpenAI Inc.’s ChatGPT and DALL-E, Midjourney, and Stable Diffusion.