AI-Generated Content and Protections Under Copyright Law
- More AI means more government. This initiative is in response to recent rapid AI advancement.
- Marketing message. What’s yours — and what’s AI content?
- The answer: it’s complicated. Ongoing debate about what’s considered “human” is the only way to ameliorate this problem, and with lawsuits on the rise, there is not a clear answer.
The U.S. Copyright Office launched a new initiative that examines content generated by AI in “direct response to the recent striking advances in generative AI technologies and their rapidly growing use by individuals and businesses.”
“The Copyright Office has received requests from Congress, and members of the public, including creators and AI users, to examine the issues raised for copyright, and it is already receiving applications for registration of works including AI-generated content,” officials wrote.
It gets trickier and trickier the more you use generative AI-driven content and campaigns. This is a copyright conundrum for digital marketers, as AI has become a creative aid for many businesses and employers, and is frequently used to help create targeted ads, design websites and enhance the customer experience.
The US government attempts to map it all out in its registration guidance posted in the Federal Register this month.
US Message: Your Computer Is Not an Author
According to the Copyright Office’s entry into the Federal Register this month, “If a work’s traditional elements of authorship were produced by a machine, the work lacks human authorship and the Office will not register it.” Since copyright only applies to content created by human minds, any AI-generated content can be reproduced, sold and distributed without getting permission from the person/people who generated it.
Here’s the example the U.S. Copyright uses:
When an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works inresponse, the ‘‘traditional elements of authorship’’ are determined and executed by the technology — not the human user. Based on the Office’s understanding of the generative AI technologies currently available, users do not exercise ultimate creative control over how such systems interpret prompts and generate material. Instead, these prompts function more like instructions to a commissioned artist — they identify what the prompter wishes to have depicted, but the machine determines how those instructions are implemented in its output.
The big message for marketers? Watch what you create for content, because all of it may not be yours.
“Generative AI tools are amazing, and they give us the ability to enhance creativity and scale content creation,” Paul Roetzer, CEO and found of Marketing AI Institute, said in a LinkedIn post. “But, you may not own, or be able to protect, the outputs. Talk to your IP attorneys.”
Related Article: Generative AI: Opportunities and Challenges for Marketing
The Rise of AI and its Role in Marketing
The rise of generative AI over the last few months has been exponential, and will likely continue to skyrocket. This is due to a recent advancement in the way AI uses machine learning to process and generate content. According to a 2023 article by Allianz Global Investors, humans were previously needed to classify data — identifying an image as a “dog,” for example — but AI has evolved to its own predictions and calculations. This is why software like Dall-E and ChatGPT have become so popular. Now, Allianz Global noted, “the machine has moved from being able to identify the dog in an image to creating an image of the dog.”
This type of advancement is especially advantageous for marketing and business development — there are hundreds of AI tools available for marketing teams to cater to customers. Oftentimes, it’s easier to use software to develop a customer profile or cultivate personalized ads, but it can also be used to help create taglines, slogans, logo designs and web page layouts.
But with content advancements via artificial intelligence comes increased ownership questions. Not being able to copyright creative elements associated with your company may be detrimental to your brand.
For example, ChatGPT is frequently used not as a basis, but as an aid to shaping up snappy headlines, trademarks or written work on your site. Even if you don’t rely on AI to create content from scratch, using it to touch up a project also brings up questions of ownership. The U.S. Copyright office says in its Federal Register entry, “Applicants should not list an AI technology or the company thatprovided it as an author or co-author simply because they used it when creating their work.”
Lawsuits May Spurn a Redesign in Marketing Tactics
Shawn Goodin, a marketing technology executive, commented the following on Roetzer’s post: “This space is evolving so quickly and we need artists, lawmakers, philosophers, connive scientists and spiritual leaders to come together and deliberate long and hard on the future of machines in our world.”
There are now numerous lawsuits over content aided with AI. For example, Kris Kashtanova, author of “Zarya of the Dawn,” is fighting to receive full copyright for her book that included images created with a software called Midjourney. According to an article by Reuters, the Copyright Office agreed to reissue its registration for the book to remove images that “are not the product of human authorship.”
Although the majority of ongoing lawsuits are currently dealing with visual artists, marketers using AI to support creative projects may soon have to face some copyright battles.
Perhaps copyright and AI is a work-in-progress, but, as it stands, even a helping hand from AI software in the form of an outline or SEO write-up likely renders the content “non-human” in the eyes of the US government.
Goodin ended his post with a statement that serves as the axis for our ongoing and complicated relationship with AI: “What makes us human is up for debate.”