For those who don’t know much about AI, it’s a technology that gathers and distributes information and images, which can then be used for a wide range of purposes. Think of it like a library but you don’t know how the library is collecting the information, or how it stores the information. You just know that if you ask the library to produce an answer to a question, or to provide an image based on a description, or a video, or to suggest items to users of an app based on previous purchases, it can do that. And not only can it do that, but it can allow for information and images to be altered in any way you desire without notice to the original creator of the work, without limitations on its use, and without verification of accuracy.  Scary.

A main concern for creatives is how do you protect your work (for example, photographs) from being used in this AI process? Also, how do you get a source of AI to either compensate you for using your work before getting your permission, or get them to stop using your work at all?

AI also raises concerns among the legal community because there hasn’t been enough litigation about AI to clearly say whether already established principles in copyright law, trademark law, patent law, etc., will continue to hold up in their totality to AI, and if not, what is the point of distinction?  There are some current notable lawsuits with unique facts against AI providers.  However, these cases will take time to resolve through the litigation and appellate processes. 

One of the cases I am keeping an eye on is the NY Times’ lawsuit against OpenAI and Microsoft.  The NY Times argues that OpenAI is using the Times’ published copyrighted material to train its technology, without their consent.  https://apnews.com/article/nyt-new-york-times-openai-microsoft-6ea53a8ad3efa06ee4643b697df0ba57?utm_source=copy&utm_medium=share.  OpenAI argues that the material from the Times falls within the category of “fair use,” and therefore is not subject to the typical copyright protection.  https://www.nytimes.com/2024/01/08/technology/openai-new-york-times-lawsuit.html.

Another case to watch is a case of 17 authors who are suing ChatGPT for copyright infringement. https://apnews.com/article/openai-lawsuit-authors-grisham-george-rr-martin-37f9073ab67ab25b7e6b2975b2a63bfe. The authors say that the ChatGPT technology uses their books, without permission and without compensation, to train the algorithm within the technology. As a result, searches performed by users of the technology allow the user to further infringe on the authors’ copyrighted material by allowing the user to create derivative works from their original material.

So you see this is going to take a while to resolve.

Keep a look out for my next blog entry about the difference between copyright and trademark, and why federal registration for both is recommended.