By Eric D. Morton
Artificial intelligence is in the news. A number of legal, ethical and public policy issues have arisen with new, powerful AI systems such as ChatGPT-4. One which is under intense discussion is the use of AI to create works of art, or written works. For instance, the question that has arisen is who owns such works – or to put it another way, who is the author of the work?
Recently, the U.S. Copyright Office cancelled the registration of AI generated art. This has created much controversy and confusion in the legal and art worlds. The reason for the refusals is because there was no author, in the legal sense, of these works. This is one of myriad of issues that have come up recently.
What is AI?
AI is a tool. Very simply, what we call AI are neural networks that have been trained, or use algorithms, to learn to recognize patterns and correlations. AI systems work by taking in large amounts of data, analyzing the data for patterns, and using these patterns to make predictions, create works, produce research memos, etc. In this way, a chatbot that is fed examples of text can learn to exchanges texts with people, or an image recognition tool can learn to identify and describe objects in images by reviewing millions of examples. New, rapidly improving generative AI techniques can create realistic text, images, music and other media.
Problems
With new, advanced AI systems, legal problems have arisen. Recently, a Tik Tok user created a song that accurately mimicked the voices and styles of the artists Drake and The Weekend using AI. The song, “Heart on My Sleeve”, created great excitement and rave reviews until the truth of its generation came to light. Legal experts are debating and exploring the legal issues related to such use. For instance, does the song violate any copyrights of Drake and The Weekend, or other intellectual property rights?
An artist submitted a comic book to the U.S. Copyright Office that was created with Midjourney, an artificial intelligence image generator. The artist wanted to register the comic book as the author and owner. The Copyright Office registered the comic book and then issued a letter that it would cancel the registration on the grounds that the images in the comic book had not been created by a human (i.e. there was no human author). The Copyright Office stated that it would issue a new registration only for the content in the comic book that was created by the artist.
The U.S. Copyright Office is now requiring disclosure in registration applications of those parts of a work that were generated by AI. There are many arguments that even AI generated art should be registered since a human has to direct the creation a work. The Copyright Office recognizes that it needs guidance on AI and seeking public comment.
Furthermore, AI is not perfect. Attorneys using OpenAI’s ChatGPT-4 for legal research have received memorandums with false information and false legal citations. False information generated by AI is called a hallucination. If the AI system does know something or can’t work something out, it will create something anyway. As someone said: AI can be like a friend who knows an enormous number of things but always works from memory and can’t say “I don’t know”.
Take-aways
If you use AI to generate images, music, written content or other works, you may not be able to claim a copyright to your work. Someone else could take that image, music, etc. and use it. A “works for hire” clause in an independent contractor contract may not be enforceable. The issue of authorship when using AI may not be settled into a hard and fast rule but will probably result in a general rule (like Fair Use) that will be evaluated case by case.
If you use AI for a specific purpose, use a program that specializes in the purpose. For instance, there are AI legal research programs that have guidelines and guard rails to prevent hallucinations. Before you rely on any information from an AI system, double-check it.
AI is rapidly changing and the legal standards have yet to be determined. The single most important thing for now is to know when someone who is creating content for you is using an AI tool. You should be aware of what is created and how.
Eric D. Morton is the principal attorney at Clear Sky Law Group, P.C. He can be reached at emorton@clearskylaw.com, 760-722-6582, or 510-556-0367.
