Name: IP Lawyer Breaks Down Three Copyright Lawsuits Challenging AI’s Business Model
Uploaded: 2024-04-15T04:01:00Z
Duration: 8 min 5 s
Description: Artificial intelligence is quickly evolving, but copyright law is still playing catch-up. A lawyer breaks down three of the biggest cases to explain how the law is evolving with this technology. Photo illustration: Nayon Cho

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Artificial intelligence is quickly evolving, but copyright law is still playing catch-up. A lawyer breaks down three of the biggest cases to explain how the law is evolving with this technology. Photo illustration: Nayon Cho

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IP Lawyer Breaks Down Three Copyright Lawsuits Challenging AI’s Business Model

We're gonna swap face here with Elvis and here comes South Indian Elvis.

Narrator: This is Reface, an app that lets users swap faces with others using AI, and it's currently embroiled in a lawsuit. It's one of dozens of AI related lawsuits filed in the last couple of years.

I'm gonna break down three of the biggest cases at the intersection of AI and intellectual property law. Maybe the biggest issue facing copyright lawyers today is whether or not works created using generative AI tools are even protectable? The case that illustrates this copyright conundrum perhaps the best is Thaler v Perlmutter.

Narrator: In 2018, scientist Dr. Stephen Thaler applied for copyright protection for this piece of art, which he said was produced by a generative AI system he created. The Copyright Office rejected his application saying creative works must have human authors to be copyrightable.

And so what the Copyright Office is basically saying is that we're not gonna extend copyright protection to works that are made by machines.

Narrator: Thaler sued over the rejection and lost, but he didn't give up. He appealed the ruling and a decision is expected by the end of this year. The Copyright Office declined to comment.

In order to receive copyright protection, a work needs to be original, fixed to a tangible medium, and have human authorship. This element of human authorship is not really disputed, discussed or litigated very often. However, there was a case that got some headlines that did focus on this element of human authorship.

Narrator: In 2011, wildlife photographer David Slater set up and left his camera unattended and a monkey named Naruto allegedly took photos of himself with Slater's camera.

PETA argued that Naruto, not Slater, should be the lawful owner of the copyright. Ultimately, the federal court said that photograph lacks human authorship because Naruto is a monkey.

Narrator: And the rise of AI raises new questions. If a human edits artwork made by AI, can that count as human authorship?

Maybe The first case that actually spotted this copyright conundrum involves the artist and computer scientists named Kris Kashtanova.

Narrator: Kashtanova used the generative AI tool Midjourney to create the artwork in their graphic novel. They said they personally edited some of the artwork using Photoshop, but the Copyright Office said the edits were too minor to be entitled to copyright. The Copyright Office also said in its letter to Kashtanova that if there were a sufficient amount of original authorship made by a human that could warrant copyright protection. Kashtanova's attorneys said in a statement that the Copyright Office's decision was incorrect and is unsustainable.

So why is all of this such a big deal? Without the ability to get a copyright registration, people who are making work in this way will not be able to meaningfully commercialize that work. I think either a federal appellate court is going to expand on the definition of what human authorship means, or I think Congress will be lobbied to a point where they will need to define again, the meaning of human authorship as it may be relates to contemporary society. Why is the intersection of AI and right of publicity laws important right now? AI as a technology has made it exceedingly easy to co-opt, or repurpose somebody's name, image, and likeness for some kind of commercial purpose. ♪ I came in with my ex like Selena to flex ♪ Yeah, I mean, that sounds like Drake.

Narrator: But it isn't. It was made by an anonymous producer named Ghostwriter who used generative AI tools to fake Drake and the Weekend's Voices. Ghostwriter's song hard on my sleeve had 600,000 plays on Spotify before it was pulled down following a copyright infringement complaint from Universal Music Group, and it isn't the only example. Kyland Young a former contestant on CBS's Big Brother.

This is a fun opportunity. We come back to more friends.

Narrator: Sued Neocortex, which owns the app Reface we saw earlier. He said his face was in the app's library for paying users to edit without his consent, which violates his right of publicity. Young's complaint says that the use of his image for commercial benefit is the core of the issue.

One example of this is a 1992 case involving Samsung. When they ran this ad. I probably don't even have to tell you who that is, and that is the problem.

Narrator: The robot in the print ad is meant to look like Vanna White, a host on the game show "Wheel of Fortune." In 1992, she sued Samsung for violating her right of publicity, and the court agreed. That's the question that Kyland Young's lawsuit is wrestling with.

I think Neocortex is going to have a very difficult time defeating this claim by Young.

Narrator: Reface said Young's images are no longer available in the app. The company argues that because the app's output is derivative, the Copyright Act preempts Young's right of publicity claim.

Most of the actual lawsuits relates to this thing called training data.

Narrator: Or the material used to create large language models that power generative AI systems like ChatGPT. One of the first cases involving training data was filed by a group of artists in 2023.

What these artists are saying is that their copyrighted works, which live in digital form online, are used and scraped to train the large language models used by Midjourney, Stability AI, and the other defendants. Since these artists never licensed their work to these defendants, they argue that that use of their copyright work violates their copyright rights.

Narrator: They also argue that the artwork produced by these AI systems should be considered copyright infringement because of how similar they look to the originals.

Substantial similarity is the legal standard used by courts to determine whether or not copyright infringement has occurred. Courts will usually focus on the similarities, not the differences, and they'll focus on the similarities of the protectable elements among each work.

Narrator: Like the subjects in this Getty image and the angle of the camera, Stability AI didn't respond to requests for comment.

I think that at the end of the day, the training standing alone is probably going to be okay, and here's why. There is a case from a few years ago involving HIQ and LinkedIn, HIQ was developing some recruiting software by scraping publicly available data from linkedin.com, and what the court ultimately said in that case was scraping publicly available information is okay. These platforms are still going to have to ensure that the output does not constitute copyright infringement.

Narrator: There will likely be more of these copyright issues, especially when OpenAI releases its text to video tool Sora to the public.

You can imagine now if somebody wants to create a cityscape of like Tokyo or New York City or Paris, right, they might end up actually creating modified but recognizable versions of famous trademarks.

Narrator: OpenAI declined to comment. The law is just beginning to catch up to the fast advancement of AI.

Technology in general moves very fast and tests the bounds of the existing laws that we have. Oftentimes, it's these types of technologies and shifts in technology and culture that force us to rethink the law or reapply the law, or ultimately even rewrite the law.

The Lawsuits That Could Shape the Future of AI and Copyright Law

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