In this fireside chat with attorney Ruth Carter, we dig into how copyright law applies to content created by artificial intelligence. Who owns these fabulous works of art generated by systems and models like OpenAI’s DALL-E or Stability.ai’s Stable Diffusion? What about blog content created by tools like GoCharlie or Copy.ai?
Watch the interview on YouTube »
Key highlights of the interview on AI and copyright law:
- Copyrights protect original works of authorship that are fixed in a tangible medium. Trademarks protect names, logos, slogans, and other branding elements. Patents protect inventions.
- The case Naruto vs Slater has established that only humans can hold copyrights, not monkeys or machines. This means that any content created purely by AI is automatically in the public domain and anyone can use it without permission.
- If you create a work that is based on a public domain work, you can only claim copyright in the parts of your work that are original to you. You cannot claim copyright in the public domain work itself.
- It is most likely that if you use an AI model to generate a work, and then copy and paste that work onto your blog, the work would be considered public domain.
- You probably wouldn’t get copyright protection in what AI creates unless until you add in original work of authorship, your original thoughts, and then that would be protected by copyright.
- If you create a blog post based on an outline, you still would probably have copyright in your resulting work, because you added your original thoughts to it.
- There is no definitive answer on how to protect AI generated content, as the law has not yet caught up to the technology. However, one potential way to protect AI generated content is to claim it as a derivative work of something that is copyright protected. Another option is to put a water mark on the content to protect it as a trademark.
- There is low legal risk for companies to publicly state that they use AI in their content generation. However, if someone were to challenge that company and say their content should be in the public domain, the company would need to be prepared to defend their position.
- Companies should document their content creation process to show that humans are involved in the process and to avoid any claims that AI created the entire content.
- If a machine generates an image that looks similar to you, it’s not copyright infringement if you didn’t specifically copy it.
- If you’re creating content with AI, you should have humans substantially involved in the process to avoid copyright issues.
To engage Ruth’s services as an attorney, visit their website at GeekLawFirm.com.
Disclaimer:
This interview does not constitute legal advice or create a client-attorney relationship with anyone.
The information contained in this interview is presented on an “as is” basis with no guarantee of completeness, accuracy, usefulness, timeliness, or of the results obtained from the use of this information and without warranty of any kind, express or implied, including, but not limited to warranties of performance, merchantability, or fitness for a particular purpose. While we have taken every reasonable precaution to insure that the content is accurate, errors can occur.
In all cases you should consult with a qualified professional familiar with your particular situation for advice concerning specific matters.
Machine-Generated Transcript
What follows is an AI-generated transcript. The transcript may contain errors and is not a substitute for watching the video.
Christopher Penn 0:16
Please note the following warning disclosure and disclaimer, this interview does not constitute legal advice or create a client attorney relationship with anyone.
The information contained in this interview is presented on an as is basis with no guarantee of completeness, accuracy, usefulness, timeliness, or of the results obtained from the use of this information.
And without warranty of any kind, express or implied, including, but not limited to warranties of performance, merchantability or fitness for a particular purpose.
While we have taken every reasonable precaution to ensure that the content is accurate, errors can occur.
In all cases, you should consult with a qualified professional familiar with your particular situation for advice concerning specific matters.
And Ruth Carter, you are that qualified professional, so please tell us who you are and what you did.
Ruth Carter 1:07
Hi, Chris.
I am Ruth Carter, a licensed attorney based in Arizona.
I am an authority on business, intellectual property and internet law.
And I have recently been bombarded with questions about how AI and the law interact.
Christopher Penn 1:27
And part of that is me.
Part of that is people like me asking questions.
So let’s get started with a question just to help clarify things for people.
What is copyright.
Ruth Carter 1:43
So to have a copyright in the US, you only need two things, you need an original work of authorship that is fixed in a tangible medium.
That’s it, it doesn’t put any qualifications on the quality of the work.
And that tangible medium can be a digital file that requires some type of device or computer to properly perceive it.
But one thing to note, there is no copyright protection for facts, ideas, or an original arrangement of facts.
Christopher Penn 2:23
Okay, what’s the difference between a copyright at like a trademark and a patent? Because we hear these terms a lot is particularly in like AI.
Ruth Carter 2:34
Yeah, we hear these terms a lot.
And unfortunately, many people who are in the media use these terms interchangeably when they’re not.
So copyrights apply to original works.
So in the time before computers, we would think of things like painting, sculpture, architecture, dance, music.
Those are things that are covered by copyright.
Trademarks apply to what people in marketing would call branding.
So that’s names of companies, products, logos, slogans, things you put on the things that you’re offering to the public, to differentiate what you’re offering from your competition.
And it is possible for a trademark to be protected by both trademark and copyright depending on what you’re claiming as your mark.
And then patents applies to inventions.
So thankfully, most people aren’t confusing.
Copyright trademarks and patents, but it’s a copyright trademark thing where people tend to misuse or think that the terms are synonymous when they’re not.
Christopher Penn 3:47
Gotcha because you had mentioned there’s no copyright protection for ideas and algorithms, but there can be patent protection for those.
Ruth Carter 3:53
Exactly.
Okay.
Christopher Penn 3:55
So ad content marketing Well, we were both the Content Marketing World not too long ago, you’d said that case law around AI created content is largely settled based on the selfie right this selfie here.
In the case Naruto vs Slater content created by nonhumans is inherently public domain.
Can you outline that case and what it entailed and what how it applies to AI.
Ruth Carter 4:21
Okay, so here’s what happened.
Slater is a photographer.
He was in Indonesia, and he had put his camera down and Naruto this monkey came along and picked it up and started fiddling with it and ended up taking several pictures including the selfie.
And so this case centers on who owns the copyright in this photograph, the photographer who own the camera says I own it.
And PETA who brought this case on behalf of Naruto says No, the monkey owns it.
And so the ruling of The case was that the monkey cannot own the copyright in the photo, because only humans can own copyrights.
So in this situation, because somebody who is not a human took the photo, it doesn’t qualify for copyright protection.
And so this photo is in public domain because it has no copyright.
It never had a copyright.
Christopher Penn 5:29
So I can show this here, and this is totally fair game, I could I could use this in a blog post, even because it is public domain.
Ruth Carter 5:36
Absolutely.
You can put it on T shirts, you can sell it you can.
You can make prints, you can do whatever you want with this photo, and nobody can stop you.
On the flip side, you can’t stop anybody from competing with you because you have no rights in it either.
Christopher Penn 5:53
One point of clarification, you said a human can hold a copyright.
But can’t Don’t corporations also own copyrights or is that not the case? No.
Ruth Carter 6:03
Copyrights can be held by corporations, by legal entities, but Corporation, but you have to have a human involved in the creation of the thing.
And they have to be primarily involved, you can use a computer to you know, create your art or create your blog post or whatever it is your work.
But the computer doesn’t own the copyright, even though it was used in the process.
Yes, a company can own a copyright.
But a human has to create the work that is protected by copyright.
A human being not a legal, not a legal entity is not enough.
Christopher Penn 6:47
Got it? Okay.
So why is this a case of, you know, generation by a nonhuman outweighing the model of software like Microsoft Word like, for example, Microsoft Word is, is a piece of software.
And I work with it to generate content and AI based tools.
I do the same thing to a degree I provide prompts I provide model tuning, why would the output of an AI not be protected in the same way that the output of Microsoft Word is protected by copyright.
Ruth Carter 7:22
So I look at Microsoft Word as a medium.
You know, just like we don’t give copyright to paint and Canvas, we give it to the person who used them.
So you’re using a tool.
Now there are software that will do like auto completes and things like that.
But then in those situations, I would ask what are you claiming as the work? If? Are you creating something that is solely auto complete? And just whatever it suggests, next, you’re approving? In that case, I would ask is that the entire work? Or is that like one sentence, because there’s probably not copyright protection in one sentence, because that’s not enough to qualify as an original work of authorship.
And then I’m thinking about my phone, where like, I’m on Facebook, and it’s suggesting it’s giving me like three choices.
And I’m still the one deciding which one it’s going in.
So there’s an argument that it’s still a human choice as to which options you are going with.
Christopher Penn 8:33
Okay, so that was like the copyright case with the copyright office and failure.
With failor.
The Copyright Office said that they don’t view they will not register work produced by a machine or mere mechanical process that operates without any creative input or intervention from a human author.
So
Unknown Speaker 8:55
is there how do you how do you
Christopher Penn 8:58
define the line? What constitutes because obviously a machine that I there’s like, I guess a spectrum of generation, there’s totally human made with like, you wouldn’t be in word like we’re doing everything pushing the keys.
There’s totally AI generated where machines just cranking out stuff and there’s you just you don’t even give it a prompt just they just make stuff, which is what happens with generative adversarial networks.
But then this is fuzzy ground all in the middle of Well, I did provide a prompt and I did reject Stable Diffusion, MAE 25 versions of this, this prompt, and I had to be the one to pick which one of the 25 it was because 24 of them sucked.
Where is where is is there a line and how does how does someone who’s interested in copywriting their their works? How do they how do you find that line?
Ruth Carter 9:50
So it’s important to differentiate and fair what happened there is he listed himself on the Copyright application as merely the owner of the machine.
So and he claimed that the machine did all the creating.
So from that perspective, you can’t apply for a copyright or you can’t list an author who’s not who’s not an owner or who did not do the actual creating.
So that was part of his issue is that there was no human on the application who created and then getting into, you know, where is the line? If you create something, and then run it through a process to get the AI generated result, what you input could be protected by copyright.
And then the resulting work that came out of the AI could be a derivative work of your prompt, which still puts the copyright ownership back on the person who created the prompt.
So
Christopher Penn 11:07
okay, that no, that’s interesting, because, obviously, for something like if I put in a photo of myself, right, and but I took, and I say, I want you to put a pink flamingo party hat on me.
Oh, actually, let’s back up.
What is what is a derivative work? I’ve heard that term a lot.
And I’d like an official opinion, what is a derivative work?
Ruth Carter 11:29
All right.
So the backup even further, when you own a copyright, you get five rights, you get the rights to copy, distribute, display, perform and to make derivative works.
So derivative works are works that are based on an original work.
So if you wrote a paragraph in English, and put it through Google Translate, that translation would be a derivative work of what you created.
The best way I know to explain derivative works is with Star Wars.
So the original work may be the book or the first movie, derivative works would be everything that came out that people buy that is Star Wars branded.
So things like T shirts, action figures, the Yoda backpacks, things I can’t think of off the top my head right now.
Costumes, all of those are derivative works.
And whoever owns the copyright gets to decide what derivative works are made.
Christopher Penn 12:30
Gotcha.
Okay, if your work is.
Okay, so in the case of these generative AI models, I put a photo of myself say, put a pink flamingo hat on me, I took the photo, that’s pretty clearly a derivative work, right? It’s still substantially my work.
It’d be like me, you know, scratching off Star Wars on the other DVD and call it you know, space wars, that would clearly be a rip off.
Ruth Carter 12:53
Exactly.
Christopher Penn 12:55
How about a text prompt that yields an image I specify, I want a picture of a Korean woman at a desk wearing a gray suit, drinking a cup of coffee in an office at sunrise, highly realistic, 8k resolution.
That’s my prompt.
And the machine says, Okay, here’s 45 versions, please choose one of these 45.
And I pick the one that I like.
Is that a derivative work? Because it’s a totally different medium.
Ruth Carter 13:25
So I guess the question would be is what you put in an original work worthy of copyright, and a list of factors may not been so in that situation? I don’t see it based on the information provided that that resulting photo would be a derivative work.
On the flip side, somebody else who has who has taken a photo of a woman in a gray suit, drinking coffee at sunrise on in an office couldn’t say, Hey, you copied me necessarily, unless you can prove that the machine actually pulled and copied because there because what you may have only copied and in comparison are facts.
Like this is what a human looks like.
This is what a gray suit looks like.
This is what coffee looks like.
This is what sunrise looks like you’ve only copped the only similarities are factually based not a situation where somebody took this photo and scanned it or Xerox dit to generate this AI generated image.
Christopher Penn 14:39
Okay, so I guess that means derivative works works in reverse as well.
If I take a public domain image and I modify it, is my modification still in the public domain? You
Ruth Carter 14:53
would only qualify for copyright protection in what you added to it.
You couldn’t claim copyright ownership of the aspects of your work that are from what was public domain.
Christopher Penn 15:08
Okay, so like if I put up a pink flamingo hat on the Mona Lisa I cannot claim the the derivative work in its entirety as as mine because it’s substantially based still on a public domain piece of work.
Unknown Speaker 15:27
Exactly.
Okay.
Christopher Penn 15:33
I’m gonna get into the mathematical formulas as I’ve known to do.
So you mentioned autocomplete.
Right? So Autocomplete is based on a model called LSTMs, long, short term memory.
And essentially, they memorize the unique patterns of words you put in onto your phone over time, and essentially spit that back and say the probability of you typing lawsuit immediately afterward copyright is pretty high.
So we’re going to auto suggest that as opposed to copyright, you know, layer cake.
That’s probably statistically less likely.
If I’m using autocomplete on a phone, and I’m writing a paragraph or a poem or something using autocomplete.
Where does that sort of fall in the in the spectrum of copyright because a machine I am I am making judgments about which words suggest but I am not the ones actually writing at that point, the machine and I are writing together.
Ruth Carter 16:33
So the machine learned based on what you historically put in.
So the argument could be that because it is based on past inputs from you, that you’re still the writer, and you’re still the one who is accepting the autocomplete suggestions, okay, you’re the ones that save or send or whatever to create that work.
Christopher Penn 17:01
Okay, so that, that puts an interesting twist then on AI models.
So there are really large models like Stable Diffusion or GPT-3.
These, you know, these massive models that you get out of the box from a company like OpenAI, or Hugging Face.
That is its name.
It’s a great name.
And then there’s a process in Model Management called fine tuning, where you say, Okay, I’ve got this large corpus, we’ll say it’s the GPT, Neal X 20 DB model from Hugging Face.
And then I say, I’m gonna take my blog, which is only like 2000 posts, like it’s a very small compared to the 800 million pieces of text it was trained on, but I can say, I want this model to be tuned to most closely mimic my blog, I’m gonna I want it to reweighed all of it, it’s likely outcomes based on my copyrighted works.
So I’m taking a public domain model, but I’m tuning it.
In that instance, again, how does how does this look from the eyes of the law? Because now it’s no longer the stock off the shelf model? Now it is, it is almost flavored with my copyrighted works,
Ruth Carter 18:15
right.
So I wouldn’t be surprised if we have future lawsuits related to copyright in AI to parse out some of these things.
But my best guess is, the law may look at these AI software’s similar to Microsoft Word similar to paint and canvas, and this is a tool, but it still comes down to how the human is using it that produces the results.
Christopher Penn 18:49
Okay.
So if I get from one of these many, many, many, many, many tools that are available, AI generated blog posts, clearly, if I just copy and paste that on my blog, because it’s purely machine generated, I put in a keyword, right, and a keyword is definitely not enough to qualify as authorship like intellectual property law, and it would spit out a blog post.
I copy and paste that in its entirety.
That that’s almost certainly public domain.
Ruth Carter 19:19
Yes, that would be my best guess.
Christopher Penn 19:22
How am I know there’s no mathematical number of your how much of it would I have to rewrite as a person to get copyright to apply to it again? All right.
Ruth Carter 19:34
So let me start by just speaking as a human, and that to date, most AI generated blog posts are crap.
I remember when AI tried to like make up pickup lines and it was hilarious and disturbing.
So start there.
So from that perspective, you would have to change it a lot to be something worth using.
But to be copyrightable.
We’re getting into where’s the mathematical equation doesn’t exist in law, they don’t like using that.
So they would look at where is your original thought? Because there is no copyright in facts.
So if this whole blog post just generated facts, like let’s say, you said, Give me a blog post about dogs.
And it said, well, dogs have four paws and ears and are can be pets? Well, okay, all you know.
And if the only things you create copied are just the facts, well, there’s no, all you did was, you know, it’s like using an encyclopedia.
So you probably wouldn’t get copyright protection in, you know, in what you create, unless until you add in original work of authorship, your original thoughts, and then that would be protected by copyright.
Christopher Penn 20:55
Gotcha.
Okay.
So in because I remember, I think I mentioned there was a case called Tora, soft versus drawers and in and one of the things they had said in that case was the owner of the software and that the user held the copyright if the, if the software is doing the the lion’s share of the work.
They didn’t really explain what the lion what a lion’s share is.
Ruth Carter 21:22
No, they didn’t.
And in that kid, ELMo was really good at that.
And they leave a door open for future litigation.
I took a look at that case.
And what they said was, because the issue was our the could the defendant use printouts from this software without violating copyright? So the software owner was saying, Well, those are derivative works, because it came through my software, therefore, I own it.
And so the in that specific case, the law said that the software was only doing an unoriginal arrangement of facts.
And so there was no copyright in the printouts.
And so there was no violation of copyright by using a said printouts, there may have been copyright in that software code.
Even binary code, zeros and ones can be sufficient to be protected by copyright.
But the but in this specific case, it sounds like it didn’t, it didn’t get there.
So there was no copyright violation in the defendant using the printouts in his book.
Christopher Penn 22:46
Got it.
Okay.
One of the things I think is challenging is that the quality of what machines are starting to create is is getting away from absolute crap and getting into mediocre to decent, right? So this is an example I just put this in, I put in my my search terms, implications of AI on copyright law.
And what this one particular says this is go Charlie, spit out is readable and coherent.
It is factually incorrect.
So there are, you know, certainly if I was, if I was a human who wanted to use, I was like, Okay, I clearly need to do some editing and cleanup.
But from a usability perspective, it’s not bad.
Right? So in terms of how much I would have to modify, I would probably have to modify the factual stuff, obviously.
But in terms of tone and the way it’s generating content, it’s it’s not bad.
So hence, the my question about like, how do we determine when something really qualifies for copyright? Because this is okay.
Ruth Carter 23:53
Except for the fact that it’s, you know, false, yes.
But I think if you wanted to use something like go Charlie, to put in an idea to see what it pumps out for ideas, or potential like subheadings I, I don’t know if this is not a bad way to go in terms of looking for ideas to cover the scope of a topic.
And as we previously exchanged emails, there, if you create a blog post based on an outline, you still would probably have copyright in your resulting work, because you added your original thoughts to it.
So I don’t know if we’re quite you know, I don’t know if this would get us there in terms of having something worth taking back to the court to say let’s re examine this AI copyright machine involvement situation.
But I think it’s I think it’s a way to look at these AI tools as ways to assist content creators in terms of what they create.
I know that doesn’t really address your copyright question.
But that’s the perspective that that first came to my mind when I looked at what you put on the screen.
Christopher Penn 25:14
Got it? If I’m a company or person that I’m using these tools to generate AI based content, for example, there’s a, there was an AI painting actually won an art contest award, the art contest is now like, okay, we’re, we’re prohibiting AI generated content, and a bunch of services like Unsplash, and Pixabay.
and stuff.
We’re all saying, Yeah, we’re not accepting submissions of AI generated content, either, which to me, that at least says, Okay, from a quality perspective, it’s, it’s there, it’s enough that you have to make that rule now as as previously we like, that’s not going to win anything.
So we don’t need to worry about machines entering if I am creating AI based stuff.
How could I protect my company’s AI generated content? Obviously, if it’s purely machine generated, it’s not covered under traditional corporate law? What about what are my other options?
Ruth Carter 26:07
Okay, a couple of thoughts.
One, I want to go back and look at that.
Art contests rules, because all the ones that I’ve looked at to date not including this one said, like, you can only enter in your own art.
So I have my first question is, did this art piece that one? Did it qualify to be entered? Again, I’m not the lawyer.
I’m not involved.
I didn’t write those rules.
But that’s what I’m curious about.
Back to your real question about how does a company protect its AI generated content.
So as we just discussed, it doesn’t look like we’re going to have full pieces of work that are fully AI generated, that are usable yet.
And so I, it would be hard to say that, at least in terms of like a blog post that a company isn’t going to be doing that.
But if you’re but if you are putting out something that is 100% AI generated, let’s say like on Instagram, which is very image focused, and a lot of people are creating images, you probably can’t, you can create, you can protect the content, the verbiage that you put with it, if it’s if it qualifies as an original work.
But the image itself, probably not, there would be nothing you could do to stop somebody from, from using something that you don’t own any rights in.
So unless you can prove that it unless it lets you somehow prove that this is an original prompt, that you put in the original prompt that is copyright protected, and the results of the AI Jeonyul the AI generation is a derivative work.
Maybe that might be your only your only way to claim protection is to say that’s a derivative work of something that is copyright protected.
Otherwise, you have to accept that potentially as a risk of using AI to create content.
Christopher Penn 28:17
If I slap a big watermark on it, that at least my trademark protects a piece though, right?
Ruth Carter 28:24
If you put your trademark on it, and somebody uses it with your trademark, then that’s a trademark issue.
That’s not a copyright issue.
But yes, you could do that.
Christopher Penn 28:35
But at that point, I could engage in services to suit them.
Ruth Carter 28:38
Potentially, yes.
Or if you use AI to generate a trademark and you are using it as such, you would have trademark rights.
But if somebody takes that trademark, and start using it as their trademark on a completely different type of product or service, that may be okay.
It is possible for two companies completely separate to have the same trademark.
without there being a violation.
That’s why we can have Delta Dental Delta Airlines Delta Faucet, no one thinks that that’s that’s one company we know it’s three separate companies.
Christopher Penn 29:18
That’s true.
Yeah.
I mean, it’d be very strange if it was the same company like the slide is gonna be miserable.
Anyways, let’s do some.
Okay, so that’s interesting that because so if if companies that are if we know companies are using AI generated content, if I were to, you know, through my own tools that as Google is doing, identify this is machine generated content.
Could I reuse it without their permission? I’ll give you an example.
The this this is another copy.
AI service and you have all these companies logos on here, they’re clear saying, you know, these companies use our software.
Well, clearly you’re now declaring these companies are Using or creating at least some percentage of their contest machine generated.
Ruth Carter 30:05
Okay, but all that tells me is that they’re using the tool that’s not telling me how they’re using the tool.
Christopher Penn 30:11
Okay, got it? Is there a legal risk as a company? If you publicly state that you use AI, in your content generation? Could Could someone else challenge that company? And say, Yeah, your content should be in the public domain?
Ruth Carter 30:27
I guess I would wonder how much money do you have, and really lead to that? Because, you know, lawyers and lawsuits are not cheap.
So I guess my question would be, what makes you think that well, what works? Are you claiming our public domain? And what’s your evidence for that? And do you really want to challenge it? Like what I mean, if it was my client, who came to me with wanting to do this, I would wonder like, are you wearing a tinfoil hat? I mean, my question would be like, what’s the upside and challenging this? Guy?
Christopher Penn 31:07
Okay.
On the flip side of that, then if I’m the company that is using these tools in my process, how should I think about documenting that I use humans, at least in a part of the process, so that if I ever am challenged by some tinfoil hat person with a lot of money, you know, like some random billionaire on Twitter? What whatever it is what I need to provide to debase that claim,
Ruth Carter 31:35
I would look at like, what is your company’s process for creating content, where you probably have things like drafts, and you have people who are paid to create content, and you can look at their files, and you can look at? We don’t really keep minutes at meetings anymore.
But if there were minutes from meetings, things like that, just to see, are there discussions about how do we use AI? And how do we transform it? One of the things we talked about earlier had to do with Disney, and I could totally see Disney using I would think for some reason either I think about Lion King, you could look at like, Okay, what does a lion look like? How does a lion move? And so to make it authentic to a yo make the the animation accurately reflect how does this animal move in reality, and that would be one way to assist their creation, without putting themselves in a situation where you know, and a were a claim of, oh, you know, an AI created this entire movie, which I don’t think we have AI that that’s good enough yet to do anything.
Christopher Penn 32:51
yet.
We’re getting there.
We’re, this morning, Google debuted image and video, which is take a prompt, and it’ll create, you know, a 10 second snippet of video out of it.
And so that we’re, we’re gonna be there at some point.
All right.
If I see a competitors content, like I see a competitor’s ad, for example, I’m maybe in SpyFu, the SEO software, I can pull copies of, you know, competitors, top performing pages.
And I look at that, and I completely generate something new that’s materially similar to their ad, like an image of a woman working at a desk reading a newspaper, sipping a coffee cup out in an office wearing a gray suit in the morning.
You were saying earlier, this, this is still they still will not be able to pursue a copyright claim on their ad because this is not their ad image.
This is me interpreting their ad image as a prompt for a machine.
Ruth Carter 33:46
Potentially, they would have to probably potentially bring a lawsuit put both pictures side by side and say, make the argument that you used AI like a Xerox machine.
And is that likely to happen? Whereas, let’s say in other situation, let’s say you were a photographer, and you saw this really cool maternity photo where somebody was like posing on a mountain and in with wildflowers around them, and they were holding their belly in a certain way.
And you would say you took a pregnant person up to a mountaintop with wildflowers, and you know, pose them in the same way and you generated two very similar pictures.
The person who gave you the inspiration cannot sue you for copyright infringement because the only thing you copied was the idea of this is the photo.
This is this is the pose this is the setting.
And so it would, it would tackle the issue of that gray area between what is the difference between copying and idea versus copying a work
Christopher Penn 34:59
Got it.
Okay.
Suppose it a machine generated image that maybe somebody put in, you know, Korean man sitting at desk with microphone, you know with bookcase behind recording a podcast and a generated image that say to a facial recognition algorithm would flag it as me.
Do I have any recourse to protect my likeness? Even though that isn’t me it was generated, but its past is so strong whoever it resembles me that facial recognition would say it was me.
Ruth Carter 35:32
Right? To challenge in question, because it sounds like they didn’t strive to copy you.
It just was a happy accident.
And so it’s like, it’s not a Vegas show.
Like, hey, we didn’t copy Chris.
The fact that that it came out similar to Chris is just serendipity.
It made me think of my friend, my friend, David Romer, looks remarkably similar to Robert Downey Jr.
And there was a picture of him like standing next to a poster of Robert Downey Jr.
Like in a movie theater.
And Facebook suggested that Robert Downey Jr.
His face was his.
So yeah, it happens.
There are people who
Christopher Penn 36:29
think your connection, either your connection or my connection just dropped one of the two.
Hey, I
Ruth Carter 36:34
know you’re probably mine.
Okay, my full answer come in about like, you know, naturally occurring twinsies.
You know, they look similar, but they’re not related happens.
Unknown Speaker 36:48
Right? Got it.
Okay, nothing
Ruth Carter 36:49
legally wrong happened.
Christopher Penn 36:52
Got it.
Okay.
Given all these issues around copyright and machine generated, do you think there will be a premium on human produced content that has a doc, as documentation says a human we certify it’s like a certified organic, we certified that this content is organic and human generated? Only human generated? No machines were involved? Do you think if so, is that something you think like your creators should be thinking about as as a differentiator?
Ruth Carter 37:21
Oh, my God certified organic content, I love that you have to do something with that phrase.
So the one challenge with that is no machines use at all means we couldn’t use computers.
So how would
Christopher Penn 37:37
it go generative processes? How about that? Okay,
Ruth Carter 37:39
no generator processes.
All right, we may have to have like a little out and y’all, I can’t stop being a lawyer.
I’m like a little star, like, you know, publishing on the internet is not generative.
So get on that? You know, I? That’s a hard question.
Because on one hand, you don’t have to deal with the legal AI issues.
On the flip side, if you’re just using it as a tool, it’s probably there’s a risk that the content is going to them, you might have similarly valued content, but one might cost a lot more to create, because it’s going to take the solely human producer longer versus then letting an AI tool help.
So maybe I think it may come down more to the value of the brand or the value of the person who is creating that’s going to be adding the value not merely that we as human with their fingers created this content.
Christopher Penn 38:54
Gotcha.
Although we do know that there certainly is a market for you know, goods and services that are artisanal, handcrafted, you know, organic, gluten free, etc.
Ruth Carter 39:04
Artisanal content, handcrafted content, these are all terms you have to find a home for Chris.
Christopher Penn 39:13
Okay, so we’ve covered a lot of AI it sounds like though, that if you want to err on the safe side, as a as a company creating content, you should have humans substantially involved in the equation AI can help.
But AI should not be in the driver’s seat is what would sum up what we’ve talked about.
Exactly.
Okay.
And if you’ve got purely ad generated content, we have to acknowledge there is no copyright on it.
Ruth Carter 39:43
Exactly.
There is no copyright in solely AI generated content.
Christopher Penn 39:48
Okay, if people aren’t I’ve heard this and and now like, Oh, crap, I need a lawyer.
How do they get in touch with you?
Ruth Carter 39:58
I guess one of the upsides of CA Copyright laws is federal so I can actually help anybody anywhere in the US who wants to talk about their copyright issues.
So I love that.
So the best place to find me is geek law firm.com will get you connected to, to me, my content, my socials, all those things.
Christopher Penn 40:19
Awesome.
Thank you so much for all of your information, not advice in today, it’s been a pleasure having you on.
Ruth Carter 40:28
Likewise, thank you so much.
Christopher Penn 40:32
And let’s go ahead and hit our
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Trust Insights (trustinsights.ai) is one of the world's leading management consulting firms in artificial intelligence/AI, especially in the use of generative AI and AI in marketing. Trust Insights provides custom AI consultation, training, education, implementation, and deployment of classical regression AI, classification AI, and generative AI, especially large language models such as ChatGPT's GPT-4-omni, Google Gemini, and Anthropic Claude. Trust Insights provides analytics consulting, data science consulting, and AI consulting.
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2 thoughts on “AI and Copyright Law: How Copyright Applies to AI-Generated Content”