You Can't Copyright AI Content
Copyright laws are one of our strongest pillars of protection as writers. Because guess what? You can’t currently copyright anything made with AI.
There is a long history of copyright cases ruling in favor of human creation but not say animal, machine, or even earth. For example, if a human takes a photograph with a camera, that work can be copyrighted. It was the human who sufficiently created the scene regardless of them only having to push a button to create that art. However if a photographer trained a monkey to take a picture with that same camera, and this is based on a real case, that work cannot be copyrighted because a human did not create it (no matter how much time that human spent training the monkey to take the selfie). Same goes for landscapers: they cannot copyright their designs because the court has ruled that even though a human imagined the colors and placement through the seasons, the earth was responsible for the end result.
So now that we see AI-generated content winning in competitions, those art creators cannot copyright their work. There’s a piece that famously won first place in the digital category at a Colorado State Fair called the The Space Opera Theater. It’s a striking vision the creator imagined in a hypnagogic state that resulted in 80 hours of prompting and over 600 prompts to create. Aside from the environmental impacts (that’s about 80 gallons of water) he tried and failed to get the image copyrighted.
I ran into a case recently at work where a local manager went rogue and had AI create an image of the company’s mascot to suit his vision for new employee t-shirts. But here’s the catch, that mascot only exists as a costume, created by a human, which can be copyright protected. If a satellite employee were to use AI to develop the digital version of that character with Dall-E or Midjourney, the company must hire an artist to recreate it digitally from scratch in order to copyright it. Let that sink in, hiring human artists to recreate AI slop art. It answers the question: who would hire a graphic designer to make their company logo when they can now use AI to generate? Well, anyone who wants to copyright that logo.
We want to be using AI as creatives as a tool. We do NOT want our marketing partners trying to go around the creatives and do it themselves. Which inevitably creates major legal risk. The courts ruled that AI is effectively an employee if it is used to replace a human’s job function, so it must perform to the same standards. Failure to meet those standards opens the company up to lawsuits and regulatory consequences. Colorado has become the first state to pass a comprehensive AI Act, the Colorado Artificial Intelligence Act, to further define the duties and consequences of both the developers and the deployers, which they define as separate entities. OpenAI is the developer of ChatGPT, you and I are the deployers.
So what does this mean for us as copywriters and entrepreneurs? As deployers, companies must now disclose when AI was used in a consequential decision and conduct annual impact assessments of the AI systems, for starters. If your company uses AI tools in any decision-making context (even indirectly), Colorado law may require transparency, documentation, and risk assessment. One way to tell if your AI system is high risk or not, is it assisting you or is it artificial substituting? There is a big difference between a copywriter using ChatGPT to assist in writing copy for an email vs. a marketer using it to substitute entirely for the copywriter. Copywriters have a much deeper knowledge of language risk, brand tone, cultural sensitivities, and legal obligations than a junior marketer often does. So a low risk AI system suddenly becomes high risk.
If I give you product names or slogans co-created with ChatGPT, the brand cannot copyright it. Who wants a franchise like Better Than Sex mascara if you can’t copyright it? Which by the way, is a great product name that I don’t think AI would ever arrive at. The human experience is still very relevant to advertising.
For these larger corporations touting that they’re replacing employees with AI, there is a slew of legal challenges coming their way. For better or worse, human labor actually remains a lot cheaper and more reliable than robotic and machine labor.
SOURCES:
AI Trained on Famous Authors’ Copyrighted Work, UnCommon Law
Episode 1: You Can Create Award-Winning Art with AI. But Can You Copyright it?
https://podcasts.apple.com/us/podcast/ai-trained-on-famous-authors-copyrighted-work-they/id1462288566?i=1000650595262&utm_source=chatgpt.com
Episode 2: Artists Argue AI Art Illegally Steals Work and Threatens Careers, UnCommon Law
https://podcasts.apple.com/us/podcast/uncommon-law/id1462288566?i=1000663223266
AI Legislation: The Statewide Spotlight, Regulatory Oversight Podcast
https://podcasts.apple.com/us/podcast/regulatory-oversight-podcast/id1617367063?i=1000706535820
Colorado AI Act
The Good Bot: A.I., Healthcare, and the Law