Wed, 28 Sep 2022 17:08:00 GMT
If you’ve been on social media throughout the last few months, chances are you’ve seen a plethora of artwork, written content, memes and more - created not by a human, but by an AI. Whilst software and new machine-learning AI systems such as DALL-E 2 and Midjourney have recently become the latest creative craze online, there has been little discussion as to the legal questions surrounding AI-generated content. It may seem a bit surreal or dystopian for some, but there is now a whole new universe of questions to be raised regarding intellectual property and AI. If your android dreams of electric sheep, who owns the sheep?
According to Ryan Meyer, Of Counsel at American law firm Dorsey & Whitney LLP, the answer is, well… no one. Although, speaking to the lawyer reveals that it’s not a simple matter - and that the law is yet to catch up with the advances in AI technology. Ryan is an intellectual property litigator who works across all areas of IP including patent, copyright, trademark, and trade secret law. He also has experience working in matters involving software, mechanical and electronic devices, networking technology, telecom technology, and others. Speaking to LBB’s Ben Conway, he discusses the latest AI content phenomenon and the legal implications that arise from it.
Impressed by the human-like complexity of new AI art - highlighting Jason Allen’s AI-generated work, ‘Theatre D’opera Spatial’ [pictured below] as a personal favourite - Ryan says, “The amazing thing to me is that, as a layperson, I cannot tell the difference between AI- and human-created artwork.” This just shows how quickly the technology has developed. Try for yourself - compare the outputs of Open AI’s DALL-E with its latest version, DALL-E 2, or even Midjourney.
OpenAI initially developed the GPT (Generative Pre-trained Transformer) model that its DALL-E software uses in 2018, and just four years later it’s capable of generating imagery in myriad styles, manipulating and rearranging objects within its images and accurately designing novel compositions without explicit instruction. It has even proven to be capable of solving Raven's Matrices - visual tests used to measure human intelligence - showing that DALL-E can express both geographical and temporal knowledge (an understanding of places, concepts and how they change over time.)
So once you’ve created your AI-generated masterpiece, what’s stopping you from claiming it as your own, using it commercially or preventing others from using it? On top of existentially threatening the very concept of artists and creatives, Ryan says that AI-generated content raises many new legal issues.
“The US Copyright Office has already refused to grant a copyright registration for AI-generated art because the current copyright law requires human authorship for copyright protection. That means that, under the current rules, AI-generated art has no owner.”
However, under the current US law, owners of the AI technology itself may be the ones with cause for concern - potentially being at risk of copyright infringement lawsuits. He continues, “AI cannot create art in a vacuum; instead, it usually reviews or even contains reproductions of other people’s artwork that it uses to create new artwork. That new artwork could be an unauthorised derivative, which is an infringement. If the AI also stores a reproduction of that artwork, that too is an infringement. Another issue is that, while artwork is generally in the domain of copyright law, computer technology necessary for AI-generated artwork might be protectable under patent law. We might start seeing patent law used in new ways to protect AIs and the methods they use for creating artwork.”
IP law varies from country to country, but Ryan explains that most nations are signatories to the ‘Berne Convention for the Protection of Literary and Artistic Works’, which establishes uniform copyright protection internationally. In countries that have signed the convention, a work of art has automatic copyright protection as soon as its author creates it, although some member countries, like the US, require you to register the copyright before you can enforce it. Most pertinently, however, Ryan reiterates that in the US, “copyright law does not protect AI-generated artwork, so neither you nor the AI company has any rights in the image.”
A mix of copyrights, patents and trade secrets are used to protect an AI’s source code and the technology it needs to operate, but very few of the legal precedents were drafted with AI-generated art in mind. So whilst copyright protection currently requires a human author, which Ryan says “leaves AI-generated artwork out in the cold” for now, we are likely to see court decisions and new legislation directly addressing this topic in the coming years.
[Image generated by DALL-E]
In the US specifically, changing copyright law requires that the Senate and House of Representatives pass a bill for the President to sign into law. This process depends on interest and opposition within both Houses of Congress as well as potential procedural hurdles, like a veto from the president, and therefore could pass in a matter of weeks or drag out for years. “For a complicated, potentially controversial issue like this, we might have to wait several years for the laws to catch up with technology,” says Ryan.
He adds, “AI-generated artwork has already opened a can of worms, and there will be even more worms as the law evolves around it. My main concern is that new advances in technology often have unforeseen and even unwelcome legal consequences. This uncertainty makes advising clients more challenging and demands that attorneys think more creatively and strategically. However, these sorts of problems are also the most interesting, and they provide great opportunities to help our clients navigate through new possibilities.”
He also says that the way in which AIs collect information can be a cause for concern, especially as much machine-learning software utilises a database of images collated from other artists. “The key to having a strong [trade]mark, aside from first use in commerce, is making sure that the mark is distinct. If a person uses an AI to generate a mark, and that mark contains elements of another artist’s work, that person could be liable for copyright or trademark infringement. The mark might be an unauthorised reproduction or derivative of a copyrighted work, or it might be so similar to someone else’s trademark that it would create a substantial likelihood of confusion.”
He adds that promotional artwork may pose a particular risk, since its creators likely intend it to have as much exposure as possible. If a promotional piece reproduces or is a derivative of someone else’s artwork and is more highly exposed to the public, the original owner of the artwork is more likely to notice and file suit for copyright infringement. With greater exposure comes greater potential damages.
Perhaps in several years, the professional prompt-writers among us will eventually be able to own their artwork - as Ryan says, the laws are still very much playing catch-up with the technology and new legislation or amendments to IP law may one day protect the AI artists. But for now, users of AI need to remain vigilant about how they are using their machine-learning masterpieces - especially if the artwork is derivative of existing designs or will see large amounts of exposure. Not only that, but the geniuses behind AI technology also need to ensure they are complying with copyright laws to prevent infringing on existing artists’ work with their datasets.
According to Ryan, this legal uncertainty in an evolving landscape will make it hard for brands and creatives to strategise and avoid unforeseen legal repercussions. But - in the US at least - it appears a precedent has started to be set: copyright protection requires human authorship. How long that will last is to be seen, but for now, artists can rest easier knowing there’s still a place, demand and protection for human creativity.