Recent Developments Related to Generative AI and Copyright Law

The LLM itself does not include any of the expression from the content originally crawled by the bots to create the dataset. The copyright office found this description at odds with the basic tenets of copyright law, which suggest that the work must be the product of a human mind. “Thaler must either provide evidence that the Work is the product of human authorship or convince the Office to depart from a century of copyright jurisprudence.

“These cases that are just starting now are going to try to draw that line,” he says. Copyright Office made history by granting the first known registration of a work produced with the help of text-to-image generator Midjourney — a graphic novel called Zarya of the Dawn. The 18-page narrative had all the trappings of a typical comic book — characters, dialogue and plenty of images, all of which were generated using Midjourney. AIMultiple informs hundreds of thousands of businesses (as per similarWeb) including 60% of Fortune 500 every month.

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Even in the Stability AI class action lawsuit, the complaint recognizes that “none of the Stable Diffusion output images provided in response to a particular Text Prompt is likely to be a close match for any specific image in the training data” (see para 93). As Sag puts in a recent paper, “[a]t the moment, memorization is an edge case”, although there are “particular situations in the context of text-to-image models where memorization of the training data is more likely”, which “problems are accentuated in the context of copyrightable characters… and analogous situations”. While this is a statistically rare occurrence, what may occur more frequently is that there is similarity between the output and one or several of the input works. Under many national laws, an output would be infringing if it is substantially similar to a pre-existing work in the training data (on copyright’s substantial similarity test in US law, see here; on the complex issue of similarity of generated output and styles, see here). The Copyright Office’s consistent position has been that AI-generated works are not entitled to copyright protection because they are not the product of human authorship.

• Furthermore, generative AI providers should be incentivized to collaborate with copyright holders in this process, e.g. for the development of workable standards to make effective the reservation of rights.
• Unlike patented inventions, there is no exclusive right to “use” a work protected by copyright.
• The ruling might also make Hollywood studios more cautious in their current negotiations with striking writers and actors.
• The Israeli Ministry of Justice issued an opinion that its fair use provision, modeled on the U.S. fair use doctrine, permits the training of AI systems without compensation.
• The US Copyright Office is inching closer to creating new rules and regulations around generative AI and how the technology uses the work of authors and other creators.

Most recently, the buzz around generative AI « chatbots » has reached a fever pitch, as these AI systems seemingly engage with users on a human-like conversational level and generate complex content from even the simplest user inputs. Following up on a recent Alert on the Copyright Office’s Artificial Intelligence Initiative, this Commentary provides a closer look at the intersection of U.S. copyright law and generative AI. Governmental entities should consider the effects on the nascent generative AI industry when designing any tests that scrutinize the generative process of GAIs, in part because of the burdens that may be imposed on generative AI providers.

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Images produced by these diffusion models may be replicas of the model’s training data, which is typically images scraped from the web. The Copyright Office posed 34 questions regarding copyright Yakov Livshits law and generative AI for public comment. These conversations bring the United States closer to finding policy solutions for the problematic copyright questions surrounding generative AI.

As this burgeoning technology develops, users must respect the rights of those who have enabled its creation – those very content creators who may be displaced by it. And while we understand the real threat of generative AI to part of the livelihood of members of the creative class, it also poses a risk to brands that have used visuals to meticulously craft their identity. At the same time both creatives and corporate interests have a dramatic opportunity to build portfolios of their works and branded materials, meta-tag them, and train their own generative-AI platforms that can produce authorized, proprietary, (paid-up or royalty-bearing) goods as sources of instant revenue streams.

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.

The Board twice refused to register the work, finding that it lacked requisite human authorship because it was autonomously generated by AI. The Board also dismissed Thaler’s work-for-hire argument because AI cannot enter a binding legal contract. The Copyright Act of 1976 provides immediate copyright protection to any work of authorship fixed in any tangible medium of expression. The DC District Court held that, although copyright law was designed to adapt to the times, there is an underlying and consistent understanding that human creativity is the driving force of copyrightability. Go on, make all the generative AI artworks you want, but it will not be protected under copyright law. A federal court ruled on August 18 that AI-generated artwork cannot be copyrighted on the grounds that copyright law only extends to human beings, per The Hollywood Reporter.

AI is a tool that many artists already incorporate in their workflow to eliminate the more tedious tasks, thereby enabling them to produce more works at lower cost. As such, it may reduce the demand for certain skilled workers, just as photography reduced the demand for portrait artists and digital photography reduced the demand for photographers and film processors. But the most creative and nimble artists who rapidly adopt new technologies and business models will continue to be able to thrive economically from their art. To be sure, publishers and motion picture studios may be able to use AI to automate processes that are now done by humans to reduce their costs. While this may be disruptive to the artistic workforce, it does not raise copyright issues because the publishers and motion picture studios own the copyrights to the works to which they will apply these AI tools. In other words, copyright law is not the solution to the AI-related issues raised by actors and screenwriters in the context of the SAG-AFTRA strike.

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These issues include the use of copyrighted works to train AI models, the appropriate levels of transparency and disclosure with respect to the use of copyrighted works, the legal status of AI-generated outputs, and the appropriate treatment of AI-generated outputs that mimic personal attributes of human artists. Generative AI refers to the use of artificial intelligence technology to produce various types of content, such as images, text, audio, video and synthetic data. The generative AI (GAI) models making headlines are text-based – they generate and modify works based on text prompts by human users. The training data used for large language models, or LLMs, and other generative AI systems has been kept clandestine.

A federal judge in Washington, D.C., ruled Friday that artwork generated by artificial intelligence is not eligible for copyright protection because it lacks “human involvement,” reaffirming a March decision of the United States copyright office. Adding to the list of legal challenges centered on generative AI, a potential class action lawsuit was recently filed against Stability AI Ltd., Midjourney Inc, and DeviantArt Inc. in the Northern District of California. The plaintiffs characterize the generative AI system as « 21st-century collage tools » that violate the rights of artists by using their works without consent. A similar complaint was filed by Getty Images against Stability AI in the High Court of Justice in London, claiming Stability AI infringed intellectual property rights, including the copyright owned by Getty images. Its increasing use and popularity spawn new copyright questions and concerns regarding the works these tools produce and the materials used for their training.

They would also undermine competition in the AI marketplace, by imposing significant financial and logistical burdens that new entrants may not be able to bear. Generative AI in search applications is another jump in the ability of search engines to get the best search results to users and get them excited about drilling into the content contributing the answer or summary item. Excellent generative AI-produced answers and summaries, containing both citations and hot links, are poised to advance the dissemination of knowledge within large enterprises, not compromise intellectual property and copyrighted content.

In a foundational case for US fair use law, Authors Guild v Google, a federal court held in 2015 that the Google Book Search program – through which millions of copyrighted books were scanned and digitized without the authors’ permission – did not violate US copyright law. In essence, the courts reasoned that Google was not attempting to “substitute” the original copies of the books through the digital versions and also that the tech company was in fact providing a legitimate public service by distributing information among the public and widening authors’ readerships. With this rubric in mind, it’s likely that the vast majority of the output of generative AI models cannot be copyright protected. These might include controversial pieces, like the AI-generated print that won a state art fair competition. In this case, the creator said he spent weeks honing his prompts and manually editing the finished piece, suggesting a relatively high degree of intellectual involvement.