So today I am talking about a topic that wasn't even on my radar 18 months ago, and that is AI or artificial intelligence. But here I am, because I am a copyright lawyer. And copyright law is AI's battlefield. I've read that recently and I loved it. It is so true.
There are so many issues that are being, battled over, currently in court, regarding AI and the issues are copyright issues, and there's still many questions to be answered about how AI AI will affect the application of copyright law to both the inputs, the outputs, as well as, the issue of copyrightability, which is what we're going to talk about today.
So some of the questions that we're fighting over right now, fair use, whether or not those inputs are fair use, we're, Arguing about, do we need to get licenses for everything that goes into those massive training data sets? And if the answer that is yes, well, how could we possibly get licenses for all of those things? if we believe that as a matter of public policy, we want to make sure that. Copyright owners retain some control over and are compensated for their intellectual property.
And we put some sort of compulsory licensing program in place. Who administers it? how do you value these things? there's a million questions to be answered. Today, we will answer just one of them. So first things first, which is the issue that probably most of you are struggling with is Is your AI generated content copyrightable? Can you get protection for it under U. S. copyright laws? Now I've done a few episodes about copyrightability and I addressed AI very briefly in them.
So if you want kind of an overall look at what works and, are available for copyright protection, check out episode 71 and 73 where I talk about the requirements of originality and creativity and what would cause a work to be in the public domain. So those are your general conversations about copyright ability. but today we will talk specifically about the issue Regarding needing to be created by a human, and that is the big issue regarding copyright ability with AI generated content.
So just make sure I don't confuse you with the term copyright ability, that simply means that a work is eligible for copyright protection. Is it copyrightable? Is it eligible for copyright protection and under us copyright law, copyright protection is granted only to works created by humans that satisfy the threshold requirements for originality and creativity. And so it is, well long held under us law and confirmed by courts that the idea behind our copyright laws is to reward.
Called man, but man or women, the, know, exclusive domain and the ability to profit from the product of their intellect, the product of the human creativity. And so specifically these exclusive rights that we get under copyright law. Attached to humans only. Now you can sell them, of course, to an organization. But the idea was to allow man or woman to profit from their own genius or intellect. while.
This issue of AI generated content, is it created by human or not, lots of conversation about it. However, this is not a new issue. The issue of whether or not, content that, is copyrightable based on the human creativity, factor is a An old issue. So many of you may recall, a photograph taken by a monkey. So it was a macka who took a selfie. this was 2011. I mean, it is grinning. It's the craziest. Photograph because he has to know he's taking a photograph of himself.
Otherwise he's just maybe just enjoying the camera, but it's the best selfie ever. Gritting like crazy. perfect, clarity, just everything. You couldn't have a better, posed photograph than this and so it was taken by this macaque using the camera equipment of a wildlife photographer who'd come. don't recall if he'd left it there intentionally. hoping they would do this, or if he just kind of went to get lunch or something and he picked up.
So anyway, it was, the subject of a series of cases that lasted almost a decade regarding the copyright status of these selfies taken, by these monkeys using equipment of this wildlife photographer. And so there were a couple of publishers, some websites, and blogs that published the photographs. and the photographer said, no, you have to take them down. Um, I have the copyright in those and these publishers were like, Nope, we don't.
There's no copyright protection in photographs, created by animals. And so there was that level where the photographer's name was Slater. The photographer's suing everybody who's using the photograph without his permission. And then PETA, Stepson, People for the Ethical Treatment of Animals, Stepson argues that the copyright should be assigned to the macaque. So, Slater, the photographer, says, I have the copyright because I engineered the situation. I engineered the situation.
Traveled there I befriended the macaques. they were comfortable around by equipment. And he says that he set up his equipment in such a way that the selfie might come about. And so the, Wikipedia and, some other, image libraries said, no, non, there's no such thing as a non human creator having a copyright. And so it's in the public domain and we can use it. PETA steps in to try to create a precedent that, legal precedent that animals should be declared copyright holders.
And PETA sued the photographer since he was claiming copyright ownership and, had published a book, that contained the image the copyright should vest in the, Monkey, and that PETA should be appointed the administrator and that all proceeds from exploiting would then go to a trust that's set up for the benefit of endangered species. And, the copyright office said, no, a photograph taken by a monkey cannot be copyrighted. And then that has been affirmed by federal court.
So in other words, those selfies taken by the macaque. Are in the public domain, they are not copyrightable and therefore they are in the public domain and in the public domain means that it's not protected by intellectual property. So anyone can use it. we have our selfie taking monkey, but there are some other examples. Of creations that are creative, I should say content that was creative, but not created by humans that did not get copyright protection.
So other examples, a mural painted by an elephant. Some of you may have seen that. I know elephants are known for their paintings, which is kind of interesting. someone who claimed copyright protection over the appearance of an actual animal skin to not. An artistically created one, but trying to get copyright protection of an actual animal skin denied driftwood that was shaped and smoothed by the ocean.
seen driftwood, some of it is certainly very sculptural, beautiful, but you cannot, but there's no human element in the creation of driftwood. and then there was an application for a song that named the Holy Spirit as the author of the work. And. The copyright office did not find the Holy Spirit to be human, and so it was not, copyrightable. And so the song is in the public domain. I'm curious about what the song is.
even before a, I, there's a corollary that involves technology for things like a mechanical process where something happens without any human intervention. For instance, when we, transfer. A motion picture from VHS to DVD that is not create a new work, that is copyrightable. And, , I've talked about dash cams. I am curious about that. I've seen a couple of different interpretations.
Like if I have a ring camera, it's maybe a dash cam, but let's say a ring camera, which literally I set it up so I can see who's at my door. but it captures. bears playing outside of people. We see this all the time. Look, you know, who was playing outside on the swing sale last night. And people publish it is that copyrightable and arguably it is not because where was the human intervention where is the element of human intellect or human genius that went into creating that ring camera footage.
And so that brings us up to AI generated works. Now, there is no doubt. I mean, if we've seen both AI generated images and entire videos that were created by 100 percent AI generated videos, writings, posts, all sorts of things that are 100 percent AI generated. So there's no. Issue about their creativity when it's generative AI, they are creating something that wasn't there before. And so it is something new that's being put into the universe. and we are, kind of.
Reacting to it as if this is something new, but as we just went over, it really isn't new that we have had in place and copyright law has been drafted and prior court decisions have addressed the issue of whether or not something that is not created by a human can be And that applies to AI generated content as well.
I was reading an opinion piece put out by the American Intellectual Property Law Association, where they said, we believe that copyright law has generally been applied correctly to AI in that copyright protection is granted only to works created by humans that satisfy the threshold requirements for originality And creativity, but they also note that this is getting a little bit fuzzier because of the generative and creative aspects of a eye.
at the end of the day, we have an input being put in by a human, and we have an output that is being somehow utilized by human. Generally, there's still some human. Stuff happening on either end of that. And so we have this fuzziness that we don't have with say, you know, the driftwood or with the monkey even. And so we can't look at all AI generated content the same, and we will find that the copyright office as well as it is being asked.
To a pine about, works that are being registered in the copyright office, whether or not they're going to accept it for registration. They also have to look at the spectrum Of how much of that content, how much of that work was a I generated. And so when we think about 3 distinct categories, or maybe more of them, but let's talk about 3 distinct categories as of today of works that are generated using a I technology and they would have.
Different treatment, depending on which category they fall into. So, let's start with AI as a tool. this is the scenario where AI assists the human creator. So, let's think of Photoshop, or let's think of a proofreading software, such as Hemingway Editor. it is taking what the human created, and you're using technology.
Do help, massage it, improve it in some way, but at the end of the day, it is the human who is the creator when, Hemingway editor has this definition, need a quick way to proofread your writing. Hemingway Editor Plus is here to help. It uses AI to fix common grammatical issues and spelling mistakes. And it doesn't stop there. Hemingway Editor Plus also has advanced features to fix wordy sentences, passive voice, and more. So here, It is a proofreader. It's not generative, but it is, helping.
So it's taking your own thoughts and helping make it, less wordy and read a little bit more like Hemingway. And so when we use AI as a tool, that is something that traditionally we have not needed to clear with the U. S. Copyright Office as being A co author and I'm using that term just to distinguish it from the other types of AI generated content. So, our proof reading software is not a co editor of that.
It did help, make it a little more readable, smooth it around the edges, fix grammatical mistakes, but it is not a co author of that work. And so that work would be copyrightable As defined today on the other end of the spectrum would be as the sole author, and this is probably something you've heard about recently the artwork that was created 100 percent by an AI tool, and there was no human authorship whatsoever. And in fact, the.
Owner of it, tried to claim that he owned it as a work for hire and that the contractor that created it for him was his AI tool. And so it would be copyrightable and the U. S. Copyright office rejected. the registration said it is not. Copyrightable, not eligible for copyright protection because it was created 100 percent by AI. So AI is the sole author and therefore it is not eligible for copyright protection. So those are the kind of, AI as a tool versus AI as sole author.
But of course, what we're worried about is what is in the middle, AI as co author. these are the more complex cases where AI collaborates with the human contributes significantly to some of the creative output. So these are things like chat GBT, which I'm most familiar with, where you can put in an outline, say, I want to, write a blog post that covers all these things, write a 500 word blog post for me, and then it, Writes it for you.
there's no doubt that there is creativity involved because, hallucinations, funnily enough, are its own proof that what AI is doing is creative. It is making stuff up. Right. what happens when we have output that was partly us partly, and so what has happened to date with the U. S. Copyright office is that they will protect the parts that Involve human creativity and you exclude the parts that are created by a I sometimes that's pretty simple.
Sometimes that's a little bit harder and like many things. Unfortunately, there is not a black and white answer. It's all gray area and it will be determined on a case by case basis.
But it is important to know that you do need, if you want to ensure protection, that you will need to disclose that, if it is later determined that this was completely AI generated, because, obviously there are records, of AI generated content, and you tried to register it as original, you would clearly lose your copyright protection for that. So, the takeaway here is that you must be sure.
To layer on enough human creativity to any AI generated content to make sure that it will be eligible for copyright protection. If you are creating content, such as a book or a course that you want to make sure that you have the exclusive rights to it, and that somebody else can use it only with your permission, then it has to be copyrightable. It has to be eligible for protection under U. S. copyright laws.
If it is not, if it doesn't involve sufficient amount of human creativity and it ends up in the public domain, then it is free for anyone to use. So it is, in our interests to make sure as we're developing assets in our business that we can use to create leverage in our business, we want to make sure that we own that stuff exclusively.
So anything that you're thinking may turn into an asset that you can use to create leverage, make sure you own that exclusively, make sure that Asset is copyrightable. that is for use inside your business. , there'll be a future episode, probably if not the next one, the one after that, where I'll talk about the issues with third parties, if you are creating.
AI generated content and you're using him to meet contractual obligations, such as client agreements, that the issues that can arise there. So stay tuned for that. And of course, if you have any questions, you know where to find me and don't forget IP is fuel.