U.S. Copyright Office Says Protections Cover Only Human-Created Works
Artificial intelligence, or AI, may seem like a marketer’s dream. Why spend time and money on an informational or promotional piece about, say, a franchise brand expanding its product lines or services when AI can do the heavy lifting? Well, one drawback could be that the marketer may not end up owning the resulting AI-created prose or images.
Yes, a person orchestrates AI content. But a person didn’t tap keys to form the prose or didn’t wield a paintbrush or camera to produce the image. Machines did the work, and machines can’t own property, intellectual or otherwise… so sayeth the U.S. Copyright Office.
And that’s why the Copyright Office in February denied intellectual property protection to AI-generated content in a graphic novel. That ruling has marketing and advertising pros fretting that third parties might have free rein to reuse and repurpose content created by AI tools such as ChatGPT, Dall-E and Midjourney.
Generative AI muddies the water of who or what is a content creator. When a person commissions art and gives instructions that are intrinsic to its creation, the Copyright Office says it might earn copyright protections. “If AI is being used as an instrument, like a pencil, there is some wiggle room,” Ryan Meyer, an intellectual property rights specialist with law firm Dorsey & Whitney, told Ad Age.
The Copyright Office doesn’t make laws and isn’t a regulatory agency, however. It functions just to approve or disapprove copyright applications. It reviews each application on its individual merits, and the office’s granting of a copyright may hinge on how much work originates with AI and how human-created.
AI-Involved Copyright Rulings
The recent eyebrow-raising copyright denial concerned the images in author Kris Kashtanova’s graphic novel Zarya of the Dawn. Midjourney crafted the novel’s images, a fact that wasn’t disclosed in the original copyright application. Because Midjourney and similar tools rely on millions of images available on the web to produce their own versions under instruction from a human, the images “are not the product of human authorship” so they can’t be copyrighted, Reuters reported, quoting the letter.
Kashtanova didn’t seem too ruffled by the narrowed copyright. She said it was “great news” that the office allowed copyright protection for the novel’s story and the way the images were arranged, according to Reuters. She added that those copyright protections cover “a lot of uses for the people in the AI art community.”
The Copyright Office letter reviewed by Reuters also noted that Kashtanova unsuccessfully asserted that her prompts to Midjourney served as a type of authorship. “A person who provides text prompts to Midjourney does not ‘actually form’ the generated images. … The information in the prompt may ‘influence’ generated image, but prompt text does not dictate a specific result,” the Copyright Office explained in its letter.
The Copyright Office also has twice denied protection to Stephen Thayer. His Creativity Machine algorithm created images emanating from a synthetic dying brain, Smithsonian reported. He was denied protection in 2019 because of a lack of human authorship and again for the same reason this February.
Clarification Will Be Needed
Marketers will be closely monitoring subsequent Copyright Office rulings, new laws, agency regulations, and court decisions for guidance on AI use. For instance:
- What happens if AI bots create content based on copyrighted material? The bot won’t be held accountable; it will be the person, people or company who assigned it, guided it and then released the image or text.
- What if the AI-generated material is defamatory or false? A 2022 Forbes article brings up that AI platforms like ChatGPT – which almost instantly zoomed into the stratosphere in popularity – won’t necessarily provide factual, unbiased information. ChatGPT tends not to cite sources, making due diligence difficult. The takeaway for marketers: While AI promises to be a powerful tool, caution is required.
- Who owns material generated by AI at the behest of an employee? The Ad Age article pointed out that employees’ work product is, by law, owned by the employer. But if it’s AI-generated and can’t be copyrighted, is it relegated to public domain?
Outside and Inside the U.S.
Other nations aren’t as stringent about human authorship as a prerequisite for intellectual property protection, the Smithsonian article stated. A judge in Australia ruled last year that AI-created inventions can qualify for patent protection. And South Africa allowed Thaler to patent one of his products last year, noting that “the invention was autonomously generated by an artificial intelligence.” While Thaler owns the patent, AI is listed as the inventor.
In the U.S., AI is still in a Wild West phase, and the Copyright Office won’t be the only sheriff. Many lawsuits are likely within the next couple of years. A 2023 Forbes article foresaw one such possibility: The Instagram account AI Muppet Generator publishes AI images that seem to have originated in Jim Henson’s studio but instead are Midjourney’s offspring. Disney, which bought the Muppets brand in 2004, may well take action against the Instagrammer for copyright infringement, the Forbes writer said.
Court cases are likely to set new parameters for which content will be protected and which won’t. But Meyer, the intellectual property rights lawyer, told Ad Age that “the most helpful thing will be a new binding law that specifically addresses the challenges of AI.”