AI-Generated Content: What is Protectable Under Copyright Law?

While AI has been on deck for some time, this surreal advancement in AI-generated content feels as if it changed the whole game overnight. However, legal implications and guardrails for copyright and ownership may take a bit more time.

As we work with both influencers and clients, we are fielding a lot of questions specific to what is protectable under the current copyright laws and what to expect as we navigate how best to leverage these tools.

Who owns AI-generated content?

• Any output from an AI tool is not ownable in terms of copyright, according to the U.S. Copyright Office, as of early 2023. Human-generated content is entitled to copyright protection.
• In August 2023, the first ruling by a Washington, D.C. federal judge deemed artwork created by artificial intelligence isn’t eligible for copyright protection because it lacks human authorship. “The ruling is the first in the country to establish a boundary on the legal protections for AI-generated artwork, which has exploded in popularity with the rise of products like OpenAI Inc.’s ChatGPT and DALL-E, Midjourney, and Stable Diffusion.” [Bloomberg Law]

What does that mean for agencies looking to leverage AI tools on behalf of clients ?

• It may mean that your prompting strategies are protected, but not by copyright law. It would be dependent upon the extent to which you keep them confidential and only share them with each respective client and/or internally as an agency, according to intellectual property and marketing law attorney, Sharon Toerek. 

What about AI-generated content that you then edit to further personalize?

• There isn’t a clear rule for this… yet. To the extent you can draw a clear line between what humans create and what the AI tool generates, you can own the human-generated portions, but have zero ownership over the portion that results from AI. 

Is there a level of editing that makes AI-generated content protectable/ownable?

• Again, this isn’t clear just yet. Currently, there’s no specific percentage or ratio of content/editing that will deem content ownable. There’s isn’t a scale for which we can measure against, but as of  March 2023, the U.S. Copyright Office launched an initiative to examine the copyright law and policy issues raised by artificial intelligence (AI) technology, including the scope of copyright in works generated using AI tools and the use of copyrighted materials in AI training. After convening public listening sessions in the first half of 2023 to gather information about current technologies and their impact, the Office will publish a notice of inquiry in the Federal Register.

In support of this initiative, the U.S. Copyright Office has also launched a new webpage to share the latest updates around AI and copyright.

Sources: Intellectual property and marketing law attorney, Sharon Toerek; U.S. Copyright Office https://www.copyright.gov/ai/

Read more on AI-generated content and Chat GPT and the implications for influencer marketing.