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By: Ted Sutton, Esq.

Intro

Many people have used AI to generate new artworks. A few of them can generate an image. And as we saw with the artificial hit “Heart on My Sleeve” meant to sound like Drake and The Weeknd, AI can also generate new songs.  But if you make these new works, you could face liability.

AI stands for artificial intelligence. This intelligence simulates that of humans, as it teaches machines to learn, perform tasks, and make decisions. Hot new search engines such as ChatGPT and Google Bard are forms of AI.

Other AI programs such as Midjourney and Stable Diffusion generate paintings. Users can input text describing the painting they want, and the programs will generate a painting for them. While you may love the final painting, you may hate the fact that you could be sued for copyright infringement.

What is a Copyright?

A copyright is any expressive work of art made by someone. These works can include books, movies, songs, paintings, and even sculptures. People who make these works can register them with the Copyright Office to obtain copyright protection.

What is Copyright Infringement?

A person can infringe on another’s copyright if they either reproduce the work, or make a similar work without the copyright owner’s permission. With people, infringement is more straightforward. But when AI infringes on others copyrights, the issue is much more complicated.

AI can infringe on other’s copyrights in two ways.

AI Training Process

The first way AI can infringe on copyrights is through its training process. All new forms of AI are trained to create new expressive works that could be copyrightable. But in order to train the AI to do this, its programmers need to show it large amounts of data from the internet. Some of this data, however, is copyrighted.

AI Outputs

The second way AI can infringe on copyrights is by the output. When a user enters text into an AI program, the output, or the final product, may be very similar to an already copyrighted work.

Is it Infringement?

Under current US case law, a copyright holder can show copyright infringement by proving two things:

  1. That the infringer has access to the copyrighted work; and
  2. That the infringer’s work was “substantially similar” to the copyrighted work.

Let’s use “Heart on My Sleeve” as an example here. Before generating the song, the AI that made it certainly had access to copyrighted works by both Drake and the Weeknd. How else would the voices in the song sound exactly like them?

Also, while you could make the argument that “Heart on My Sleeve” was a different song, it’s still obvious that it sounds “substantially similar” to anything Drake or The Weeknd produces.

Because of this, either the AI user or the AI company could be liable for copyright infringement.

Does the AI have a defense?

One defense that AI companies can assert is the fair use defense to copyright infringement. If an infringer copies the copyrighted work and uses it as a “fair use,” that infringer will be protected. Fair use of a copyrighted work can include criticisms, commentary, satire, news reporting, and teaching.

But does using copyrighted work in the AI training process, or creating an output that is similar to a copyrighted work, constitute a fair use?

Courts look at 4 factors to determine if a use is fair:

  1. The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use upon the potential market for or value of the copyrighted work

We’ll use “Heart on My Sleeve” again.

For the first factor, if the use is more commercial in nature, it will likely not be fair use. It is highly unlikely that the use would be for educational purposes. Plus, the person who posted the song made several thousand dollars after its release. So, under the first factor, “Heart on My Sleeve” is likely not a fair use.

For the second factor, if the nature of the copyrighted work was creative or imaginative, then the infringing work is likely not a fair use. Clearly, because Drake and the Weeknd’s are world famous artists, their copyrighted works are creative. Because of this, “Heart on My Sleeve” is likely not a fair use under the second factor.

The third factor, however, isn’t as clear. An AI company could argue that because the AI looked at many different songs, “Heart on My Sleeve” took a small and insubstantial amount from Drake and the Weeknd’s copyrighted works. Because of this, the third factor could constitute fair use.

The fourth factor focuses on the economic effect of the infringing work. If the infringing work would cause economic harm to Drake and the Weeknd, then the work likely would not be a fair use. As described before, “Heart on My Sleeve” made thousands of dollars. That is money that could have gone to Drake and the Weeknd. Because of this, “Heart on My Sleeve” is likely not fair use under the fourth factor.

Drake and The Weeknd could claim that the AI-generated “Heart on My Sleeve” is not fair use. However, a court could rule either way under this untested area of copyright law.

Who owns the Copyright?

Another question is if a copyright owner sues for copyright infringement, who is the rightful owner of the copyright?

Copyright owners are usually the “authors” of the copyrighted work. But when a user generates a work by using AI, it is unclear who the true “author” of the copyrighted work is. Is it the person who entered the text? Or is it the AI software that was both trained to and actually generated the image?

Another question to ask: who should you sue for copyright infringement? The AI company, or the person who used the AI?

Also, would it be fair to hold the user liable? They didn’t know what the final product would look like. And they certainly didn’t train the AI by using other people’s copyrights.

Lawsuits

Some people have already filed lawsuits against AI companies. Getty Images has already filed a lawsuit against Stable Diffusion. Getty alleges that Stable Diffusion improperly used their photos to train its AI, in violation of the copyrights that Getty holds.

Individuals have also filed suit against these AI companies. Last year, a group of artists sued several AI companies. They allege that the AI companies both improperly used their photos to train the AI, and that the AI’s outputted photos are substantially similar to their own works.

Because AI brings a new set of untested issues to copyright law, it is unclear who the court would rule for.

Solutions

As of right now, there are far more questions than there are answers. But in order to have these much-needed answers, we will need several things to happen.

First and foremost, Congress needs to act as soon as possible. They need to determine who owns the copyright to AI-generated works, who authored the work, and when exactly does an AI-generated work infringe on another’s copyrighted work? If they don’t, then there’s a good chance that innocent people who use the AI could be sued for copyright infringement.

To protect themselves from these lawsuits, AI users will need to demand more from the AI companies. Before using their services, companies should inform users that they have permission to both use copyrighted works in their training data and the outputted result. This will ensure that innocent users will not be sued by copyright owners.

But before they can do this, AI companies will need to get permission from the copyright holders themselves. These companies will not only need to obtain the consent of copyright owners, they will also need to compensate them. It is only fair for copyright owners to receive a payment if they agree to have the AI use their works.

Copyright holders should also do their due diligence. They should be on the lookout to see if AI companies are using their works. If they do, they should demand compensation.

Lastly, insurance companies and third-party vendors should demand from AI companies that they are licensed to use others works. This will help protect all parties from liability if a copyright infringement suit is brought.

Conclusion

AI is changing the world at a rapid pace. Some of that change may be welcomed. However, this changed is certainly not welcomed by copyright owners. We need to act fast to address these issues. If not, innocent people could be liable through no fault of their own.

 

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