CSG Law Alert: Navigating Risk in Artificial Intelligence: Content Creation and Creative Works

Artificial Intelligence (“AI”) for business use presents both the opportunity to replace existing, less efficient processes and the potential for new technologies and products. In addition to the integration of AI technology with existing services and products, there is a race amongst technology companies, entrepreneurs, and investors to innovate, create, and profit from the technology and output made possible by AI.

As identified in The Blueprint for an AI Bill of Rights, which was publicly released by the White House Office of Science and Technology Policy,1 the multitude of AI technology use cases includes content creation generated by AI. Referred to as “generative AI,” this type of AI technology aggregates and analyzes preexisting creative works authored by humans and generates new creative works when prompted by a human. However, the dichotomy between preexisting and new creative works is an area of constant debate.

As a matter of contract law, owner(s) of generative AI technology may expressly retain ownership rights according to the terms of their vendor agreements, terms of use or other documents that govern the use of their generative AI technology. In addition, if an independent contractor creates content for a third party, the independent contractor has ownership rights with respect to such content, unless the parties have an agreement in which the independent contractor agrees that the content is owned by such third party. As a result, a user may not have ownership rights with respect to generative AI materials. This is particularly problematic when a company produces generative AI materials intended to be owned by a customer. In fact, such a company’s potential liability is exacerbated since it cannot grant its customer ownership of the deliverable and may be providing work product that potentially infringes upon a third party’s rights, thereby effectively breaching its contractual obligations to the customer.

In addition, ownership rights to content, designs, and other creative works produced by generative AI technology remains unclear. For example, new creative works generated by AI is derived from mass digitization and text and data mining (“TDM”) and expressive (copyrighted) works.2 Hypothetically, a company may be held liable if the company disseminates works that is produced by generative AI technology that infringes copyrighted works, even in an instance where the generative AI technology is deemed to have operated autonomously.3 Similarly, the same company can be indirectly liable for infringing a registered mark without the consent of the trademark registrant by way of utilizing the generative AI technology that infringes a registered trademark.4

On the other hand, protecting creative works that incorporate generative AI materials is not a clear cut path. The U.S. Copyright Office, which administers copyright registration, has been recently grappling with copyright registration that involves generative AI materials.

On February 14, 2022, the Review Board of the United States Copyright Office affirmed the refusal to register a copyright claim for a two-dimensional artwork entitled A Recent Entrance to Paradise, which was autonomously created by generative AI technology without any creative contribution from a human.5 It was determined, among other things, that A Recent Entrance to Paradise lacked the required human authorship necessary to sustain a claim in copyright, whereby there was no evidence establishing sufficient creative input or intervention by a human author. Citing a recent report from the U.S. Patent and Trademark Office (“USPTO”) addressing intellectual property issues raised by AI, the Review Board agreed that “existing law does not permit a non-human to be an author [and] this should remain the law.” The Review Board also rejected arguments involving work made for hire. The Review Board explained that a work made for hire must be prepared by either (A) an employee, or (B) one or more parties who enter into a work-for-hire agreement.6 Under existing law, the Review Board emphasized that (1) the generative AI technology cannot be an employee since it is not a human; (2) generative AI technology cannot enter into a work-for-hire agreement since it is not a human; and (3) existing law requires that a work contain human authorship.

On February 21, 2023, the U.S. Copyright Office canceled the previous registration of a creative work (a graphic novel) that incorporated generative AI materials due to a failure to exclude non-human authorship contained in the graphic novel.7 The application allegedly did not disclose that generative AI technology was used to create any portion of the graphic novel, nor did the applicant disclaim a portion of the graphic novel that was produced by generative AI technology. The U.S. Copyright Office concluded that although a graphic novel comprised of human-authored text combined with images produced by the generative AI technology constituted a copyrightable work, the individual images in and of themselves could not be protected by copyright. As a result, the new registration must explicitly exclude materials produced by generative AI technology.

On March 16, 2023, the U.S. Copyright Office issued Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence to clarify its current approach to the registration of works containing materials produced by generative AI technology:8

  • Copyright can protect only material that is the product of human creativity.
  • In the case of works containing generative AI materials, the U.S. Copyright Office will consider whether the AI contributions are the result of ‘‘mechanical reproduction’’ or a human author’s ‘‘own original mental conception.”
  • In the purview of the U.S. Copyright Office, humans do not exercise ultimate creative control over how the generative AI technology interprets prompts and generate material.
  • If the generative AI technology determines the expressive elements of its output, then the generated material (1) is not the product of human authorship, (2) is not protected by copyright, and (3) must be disclaimed in a registration application.
  • Applicants have a duty to disclose the inclusion of generative AI materials in a work submitted for registration and to provide a brief explanation of the human author’s contributions to the work.
  • Individuals who use generative AI technology may claim copyright protection only for their own contributions to that work.
  • Applicants should not list a generative AI technology or the owner of the generative AI technology as an author or co-author, even if used when producing generative AI materials.
  • Generative AI materials that are more than de minimis should be explicitly excluded from the application.

In conclusion, while generative AI technology presents opportunities and unlocks potential, companies should be wary of the contractual and intellectual property issues involving AI work product/contributions to [human] work product.

1 See generally The White House Office of Science and Technology Policy, The Blueprint for an AI Bill of Rights: Making Automated Systems Work for the American People. Last accessed February 26, 2023, https://www.whitehouse.gov/wp-content/uploads/2022/10/Blueprint-for-an-AI-Bill-of-Rights.pdf.

The United States Patent and Trademark Office, Public Views on Artificial Intelligence and Intellectual Property Policy. Last accessed October 7, 2020, https://www.uspto.gov/sites/default/files/documents/USPTO_AI-Report_2020-10-07.pdf, at iii, 23.

3 Id. at 28.

4 Id. at 33.

5 U.S. Copyright Office Review Board, Decision Affirming Refusal of Registration of a Recent Entrance to Paradise at 2 (Feb. 14, 2022), https:// www.copyright.gov/rulings-filings/review-board/ docs/a-recent-entrance-to-paradise.pdf.

6 17 U.S.C. § 101 (definition of “work made for hire”).

7 See U.S. Copyright Office, Cancellation Decision re: Zarya of the Dawn (VAu001480196) (Feb. 21, 2023), https:// www.copyright.gov/docs/zarya-of-the-dawn.pdf.

8 Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16,190 (Mar. 16, 2023) (to be codified at 37 C.F.R. § 202).