AI, creativity, and copyright: legal implications of AI-supported content
I make content mostly about using AI to support and enhance creativity, but this is an important related topic: Do you own what you make with AI?
Businesses and content creators are in varying stages of studying, implementing, and using generative AI tools like ChatGPT, Google Gemini, Suno, and DALL-E. It’s happening fast and new advancements are coming out each week.
But not so fast. Do we own what we make with AI? It's unclear at the moment. As of the date of this publication, the United States Copyright Office says no and courts have upheld this.
Let’s look at the key legal considerations surrounding AI-generated content and what creators and entrepreneurs should be doing about them.
First, understand that this post is informational and primarily aimed at creators in the United States. If you’re in other countries, your solutions may differ based on local laws. Check into those. Also, I’m not a lawyer. Check with your copyright, trademark, or IP attorney before taking any action on anything.
Copyright Basics
To understand why AI-generated content might be in a bit of a gray area where copyright is concerned, it’s important to know the fundamentals of copyright. In the US, copyright protection is automatically granted upon the creation of an original work in a tangible medium. This means that as soon as you write an article, design a logo, or record a song, you own the copyright.
You can, however, take things to the next level with your work and register it with the US Copyright Office. While not mandatory, it provides significant benefits, such as the ability to sue for infringement and collect statutory damages.
If AI helped make it, can you copyright it?
To quote a copyrighted work by Run-D.M.C, “It's Tricky.”
Generative AI tools introduce new challenges to copyright law. The US Copyright Office currently maintains that works created solely by AI, without human authorship, are not eligible for copyright protection. This stance has led to the denial of registration for works with substantial AI involvement. However, the legal landscape is evolving, and future court rulings may reshape this position.
If a human plays a significant role in the creative process, such as by providing detailed prompts and curating the AI-generated output, there may be a stronger case for copyright eligibility. The extent of human input and creative control will likely be crucial factors in determining whether an AI-assisted work qualifies for protection.
This also brings up the question of whether you need some sort of proof of whether or not a work was AI created. Hopefully these questions will find answers in the future.
Infringement risks
Another major concern is the potential for AI models to infringe on existing copyrights. These models are often trained on vast datasets that may include copyrighted material. If an AI tool produces content that closely resembles a copyrighted work used in its training data, it could be considered infringement. This risk extends to users of AI-generated content, who may unwittingly create and distribute infringing material.
Here are a few tactics:
Use AI tools with built-in safeguards against copyright infringement.
Obtain licenses for copyrighted material used to train AI models, when possible.
Carefully review AI-generated content before publishing or distribution.
That’s all easier said than done, with leading generative AI companies like OpenAI and Google barreling ahead with large language models that were most certainly trained on copyrighted material. Tools like Grammarly have plagiarism detection that can help. Adobe’s Firefly system for image generation is another option, as training data is all licensed (with some concerning recent exceptions). Getty Images is also partnering with Nvidia to offer licensed image generation.
Ownership and licensing
The question of who owns the rights to AI-generated content is another complex issue. Under current US law, content created entirely by AI may not be eligible for copyright protection, leaving it in the public domain. This could enable competitors to freely use and distribute such content.
The question naturally arises: would competitors freely use and distribute existing content you’ve published? Would there be a business benefit to that? It depends. Practically, they’d have to really know, and have proof, that the content was AI-generated. It’s a risk, but it may or may not be a real one. Most of this is theory at this point until it’s tested more and reviewed by the courts.
AI and copyright in practice
I used AI in all stages of putting this post together: from research (Perplexity and Gemini) to outline (ChatGPT and Claude) to initial drafts (Claude and ChatGPT), to gathering sources (Perplexity), to the artwork for the post (created by Adobe Firefly). Once I repurpose this for podcast and social, more AI tools (Descript, ChatGPT) will enter the process. However, most of what I ended up creating and publishing was heavily edited or entirely written by me. I’m human, as far as I know. If someone takes this post and republishes it, what recourse do I have? Can someone take the parts that were AI generated and use those, leaving the human parts behind?
There’s a problem with that: It’s nearly impossible to know what was AI-made vs. human-made. I don’t even really know (except to say that on this post, virtually all of what I’ve published is me-made). AI detectors claim to help with that, but at this point they’re proven to be highly suspect. So where does the “AI made this” vs “person made this” line get drawn? I don’t know. I’m not that concerned about it in this instance. Blog posts are fleeting and it would be highly ironic to steal content about copyright. I guess go ahead, thieves!
Hopefully these issues will get sorted out with time.
International perspectives on AI and copyright
What if you operate globally? Well, it gets a lot more complicated, that’s what. Different countries have adopted diverse approaches to the legalities of AI-generated content.
Some countries allow for the registration of AI-generated content and/or grant copyright to works generated with electronic assistance. Some go as far as to recognize AI as a co-creator with humans. Some countries permit the training of AI systems with copyrighted material. Others don’t.
As this is all new and in flux, I haven’t specifically named countries in this post because it could change. If you have a question regarding a specific country, it’s advisable to look up the current rules.
Make an AI policy
If you worked in the business world in the late 2000s and early 2010s, you probably either helped develop or agreed to abide by a social media policy.
We’re gonna need another policy.
To navigate the legal landscape of generative AI, content creators and small businesses should develop internal policies governing the use of AI tools. These policies should address issues such as:
The extent to which AI can be used in the creative process.
Guidelines for human involvement and oversight in AI-assisted projects.
Procedures for reviewing AI-generated content for potential infringement.
Ownership and licensing considerations for AI-generated works.
Agency and contractor considerations for AI use.
Here’s my policy, but it doesn’t cover everything as I create only my own content. If you’ve got employees, or contractors as we discuss next, you’ll want to include those too.
Working with agencies and contractors
Ok, so you’ve got this figured out and you know how you’re going to use (or not use) AI in content creation. That’s fantastic! But wait!. What about the work that others do on your behalf? Hiring contractors or using third-party services to create content comes with its own set of implications for AI use.
Traditional work-for-hire agreements may not effectively transfer ownership of AI-generated content, as these arrangements typically apply to human-authored works. Clear contractual language addressing AI use and ownership is crucial.
Do you know what your agency’s doing? Are they using AI? Do they know your company policies with regard to AI-usage? If not, that needs to be discussed and a supplier policy should be put in place.
I use AI all the time, including for much of the content produced on this channel. I don’t, however, use AI for work that I complete on behalf of companies that I contract for without their express permission and rules. If you’re an agency or a freelancer, you might consider publishing a proactive policy about this.
Here’s a link to the policy I have on this site about that.
Take action on generative AI and copyright
It really can’t wait. Generative AI presents both opportunities and challenges for content creators. Understanding the law surrounding AI and copyright will help us to make informed decisions and take proactive steps to protect, or license, our intellectual property.
Learn the rules
Develop a strategy
Create appropriate policies
And once again, before you take any real action or make business-altering decisions based on this information, give your legal counsel a call? I know it’s expensive, but it’s probably cheaper than going to court.