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So today I am talking about a topic that
wasn't even on my radar 18 months ago,

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and that is AI or artificial intelligence.

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But here I am, because
I am a copyright lawyer.

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And copyright law is AI's battlefield.

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I've read that recently and I loved it.

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It is so true.

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There are so many issues that are
being, battled over, currently in court,

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regarding AI and the issues are copyright
issues, and there's still many questions

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to be answered about how AI AI will
affect the application of copyright law

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to both the inputs, the outputs, as well
as, the issue of copyrightability, which

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is what we're going to talk about today.

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So some of the questions that we're
fighting over right now, fair use,

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whether or not those inputs are fair
use, we're, Arguing about, do we need

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to get licenses for everything that goes
into those massive training data sets?

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And if the answer that is yes,
well, how could we possibly get

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licenses for all of those things?

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if we believe that as a matter of public
policy, we want to make sure that.

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Copyright owners retain some
control over and are compensated

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for their intellectual property.

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And we put some sort of compulsory
licensing program in place.

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Who administers it?

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how do you value these things?

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there's a million
questions to be answered.

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Today, we will answer just one of them.

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So first things first, which is
the issue that probably most of you

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are struggling with is Is your AI
generated content copyrightable?

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Can you get protection for it under U.

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S.

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copyright laws?

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Now I've done a few episodes
about copyrightability and I

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addressed AI very briefly in them.

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So if you want kind of an overall
look at what works and, are available

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for copyright protection, check out
episode 71 and 73 where I talk about

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the requirements of originality and
creativity and what would cause a

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work to be in the public domain.

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So those are your general
conversations about copyright ability.

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but today we will talk specifically
about the issue Regarding needing

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to be created by a human, and that
is the big issue regarding copyright

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ability with AI generated content.

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So just make sure I don't confuse
you with the term copyright ability,

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that simply means that a work is
eligible for copyright protection.

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Is it copyrightable?

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Is it eligible for copyright
protection and under us copyright

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law, copyright protection is granted
only to works created by humans that

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satisfy the threshold requirements
for originality and creativity.

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And so it is, well long held under us
law and confirmed by courts that the idea

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behind our copyright laws is to reward.

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Called man, but man or women, the, know,
exclusive domain and the ability to profit

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from the product of their intellect,
the product of the human creativity.

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And so specifically these exclusive
rights that we get under copyright law.

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Attached to humans only.

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Now you can sell them, of
course, to an organization.

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But the idea was to allow man or woman to
profit from their own genius or intellect.

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while.

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This issue of AI generated content,
is it created by human or not,

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lots of conversation about it.

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However, this is not a new issue.

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The issue of whether or not, content
that, is copyrightable based on the human

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creativity, factor is a An old issue.

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So many of you may recall, a
photograph taken by a monkey.

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So it was a macka who took a selfie.

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this was 2011.

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I mean, it is grinning.

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It's the craziest.

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Photograph because he has to know
he's taking a photograph of himself.

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Otherwise he's just maybe just enjoying
the camera, but it's the best selfie ever.

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Gritting like crazy.

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perfect, clarity, just everything.

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You couldn't have a better, posed
photograph than this and so it was taken

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by this macaque using the camera equipment
of a wildlife photographer who'd come.

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don't recall if he'd left
it there intentionally.

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hoping they would do this, or if
he just kind of went to get lunch

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or something and he picked up.

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So anyway, it was, the subject of a series
of cases that lasted almost a decade

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regarding the copyright status of these
selfies taken, by these monkeys using

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equipment of this wildlife photographer.

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And so there were a couple of
publishers, some websites, and blogs

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that published the photographs.

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and the photographer said, no,
you have to take them down.

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Um, I have the copyright in
those and these publishers

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were like, Nope, we don't.

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There's no copyright protection in
photographs, created by animals.

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And so there was that level where
the photographer's name was Slater.

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The photographer's suing
everybody who's using the

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photograph without his permission.

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And then PETA, Stepson, People for
the Ethical Treatment of Animals,

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Stepson argues that the copyright
should be assigned to the macaque.

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So, Slater, the photographer,
says, I have the copyright because

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I engineered the situation.

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I engineered the situation.

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Traveled there I befriended the macaques.

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they were comfortable around by equipment.

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And he says that he set up his
equipment in such a way that

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the selfie might come about.

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And so the, Wikipedia and, some
other, image libraries said, no,

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non, there's no such thing as a non
human creator having a copyright.

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And so it's in the public
domain and we can use it.

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PETA steps in to try to create a precedent
that, legal precedent that animals

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should be declared copyright holders.

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And PETA sued the photographer since he
was claiming copyright ownership and,

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had published a book, that contained
the image the copyright should vest in

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the, Monkey, and that PETA should be
appointed the administrator and that

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all proceeds from exploiting would
then go to a trust that's set up for

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the benefit of endangered species.

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And, the copyright office said,
no, a photograph taken by a

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monkey cannot be copyrighted.

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And then that has been
affirmed by federal court.

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So in other words, those
selfies taken by the macaque.

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Are in the public domain, they are
not copyrightable and therefore they

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are in the public domain and in the
public domain means that it's not

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protected by intellectual property.

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So anyone can use it.

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we have our selfie taking monkey,
but there are some other examples.

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Of creations that are creative, I
should say content that was creative,

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but not created by humans that
did not get copyright protection.

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So other examples, a mural
painted by an elephant.

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Some of you may have seen that.

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I know elephants are known for their
paintings, which is kind of interesting.

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someone who claimed copyright
protection over the appearance

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of an actual animal skin to not.

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An artistically created one, but trying
to get copyright protection of an

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actual animal skin denied driftwood that
was shaped and smoothed by the ocean.

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seen driftwood, some of it is
certainly very sculptural, beautiful,

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but you cannot, but there's no human
element in the creation of driftwood.

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and then there was an application
for a song that named the Holy

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Spirit as the author of the work.

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And.

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The copyright office did not find
the Holy Spirit to be human, and

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so it was not, copyrightable.

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And so the song is in the public domain.

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I'm curious about what the song is.

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even before a, I, there's a corollary
that involves technology for things like

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a mechanical process where something
happens without any human intervention.

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For instance, when we, transfer.

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A motion picture from VHS to
DVD that is not create a new

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work, that is copyrightable.

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And, , I've talked about dash cams.

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I am curious about that.

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I've seen a couple of
different interpretations.

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Like if I have a ring camera, it's
maybe a dash cam, but let's say a

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ring camera, which literally I set
it up so I can see who's at my door.

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but it captures.

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bears playing outside of people.

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We see this all the time.

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Look, you know, who was playing
outside on the swing sale last night.

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And people publish it is that
copyrightable and arguably it is not

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because where was the human intervention
where is the element of human intellect

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or human genius that went into
creating that ring camera footage.

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And so that brings us up
to AI generated works.

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Now, there is no doubt.

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I mean, if we've seen both AI generated
images and entire videos that were

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created by 100 percent AI generated
videos, writings, posts, all sorts of

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things that are 100 percent AI generated.

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So there's no.

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Issue about their creativity when
it's generative AI, they are creating

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something that wasn't there before.

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And so it is something new that's
being put into the universe.

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and we are, kind of.

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Reacting to it as if this is something
new, but as we just went over, it really

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isn't new that we have had in place and
copyright law has been drafted and prior

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court decisions have addressed the issue
of whether or not something that is

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not created by a human can be And that
applies to AI generated content as well.

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I was reading an opinion piece put
out by the American Intellectual

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Property Law Association, where they
said, we believe that copyright law

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has generally been applied correctly
to AI in that copyright protection is

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granted only to works created by humans
that satisfy the threshold requirements

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for originality And creativity, but
they also note that this is getting

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a little bit fuzzier because of the
generative and creative aspects of a eye.

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at the end of the day, we have
an input being put in by a human,

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and we have an output that is
being somehow utilized by human.

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Generally, there's still some human.

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Stuff happening on either end of that.

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And so we have this fuzziness that
we don't have with say, you know, the

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driftwood or with the monkey even.

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And so we can't look at all AI
generated content the same, and

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we will find that the copyright
office as well as it is being asked.

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To a pine about, works that are
being registered in the copyright

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office, whether or not they're
going to accept it for registration.

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They also have to look at the spectrum

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Of how much of that content, how
much of that work was a I generated.

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And so when we think about 3 distinct
categories, or maybe more of them, but

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let's talk about 3 distinct categories
as of today of works that are generated

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using a I technology and they would have.

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Different treatment, depending
on which category they fall into.

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So, let's start with AI as a tool.

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this is the scenario where
AI assists the human creator.

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So, let's think of Photoshop,
or let's think of a proofreading

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software, such as Hemingway Editor.

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it is taking what the human created,
and you're using technology.

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Do help, massage it, improve it in some
way, but at the end of the day, it is the

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human who is the creator when,  Hemingway
editor has this definition, need a

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quick way to proofread your writing.

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Hemingway Editor Plus is here to help.

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It uses AI to fix common grammatical
issues and spelling mistakes.

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And it doesn't stop there.

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Hemingway Editor Plus also has
advanced features to fix wordy

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sentences, passive voice, and more.

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So here, It is a proofreader.

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It's not generative, but it is, helping.

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So it's taking your own thoughts and
helping make it, less wordy and read

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a little bit more like Hemingway.

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And so when we use AI as a tool, that
is something that traditionally we

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have not needed to clear with the U.

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S.

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Copyright Office as being A co
author and I'm using that term just

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to distinguish it from the other
types of AI generated content.

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So, our proof reading software
is not a co editor of that.

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It did help, make it a little more
readable, smooth it around the edges,

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fix grammatical mistakes, but it
is not a co author of that work.

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And so that work would be copyrightable
As defined today on the other end of the

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spectrum would be as the sole author,
and this is probably something you've

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heard about recently the artwork that was
created 100 percent by an AI tool, and

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there was no human authorship whatsoever.

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And in fact, the.

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Owner of it, tried to claim that
he owned it as a work for hire

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and that the contractor that
created it for him was his AI tool.

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And so it would be
copyrightable and the U.

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S.

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Copyright office rejected.

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the registration said it is not.

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Copyrightable, not eligible for
copyright protection because it

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was created 100 percent by AI.

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So AI is the sole author and therefore it
is not eligible for copyright protection.

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So those are the kind of, AI as
a tool versus AI as sole author.

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But of course, what we're worried about
is what is in the middle, AI as co author.

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these are the more complex cases
where AI collaborates with the

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human contributes significantly
to some of the creative output.

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So these are things like chat GBT,
which I'm most familiar with, where you

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can put in an outline, say, I want to,
write a blog post that covers all these

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things, write a 500 word blog post for
me, and then it, Writes it for you.

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there's no doubt that there is creativity
involved because, hallucinations,

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funnily enough, are its own proof
that what AI is doing is creative.

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It is making stuff up.

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Right.

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what happens when we have output
that was partly us partly, and so

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what has happened to date with the U.

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S.

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Copyright office is that they will protect
the parts that Involve human creativity

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and you exclude the parts that are created
by a I sometimes that's pretty simple.

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Sometimes that's a little bit
harder and like many things.

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Unfortunately, there is not
a black and white answer.

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It's all gray area and it will be
determined on a case by case basis.

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But it is important to know that you do
need, if you want to ensure protection,

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that you will need to disclose that,
if it is later determined that this

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was completely AI generated, because,
obviously there are records, of AI

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generated content, and you tried to
register it as original, you would clearly

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lose your copyright protection for that.

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So, the takeaway here is
that you must be sure.

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To layer on enough human creativity to any
AI generated content to make sure that it

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will be eligible for copyright protection.

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If you are creating content, such as
a book or a course that you want to

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make sure that you have the exclusive
rights to it, and that somebody else

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can use it only with your permission,
then it has to be copyrightable.

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It has to be eligible
for protection under U.

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S.

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copyright laws.

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If it is not, if it doesn't involve
sufficient amount of human creativity

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and it ends up in the public domain,
then it is free for anyone to use.

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So it is, in our interests to make sure
as we're developing assets in our business

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that we can use to create leverage
in our business, we want to make sure

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that we own that stuff exclusively.

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So anything that you're thinking
may turn into an asset that you

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can use to create leverage, make
sure you own that exclusively, make

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sure that Asset is copyrightable.

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that is for use inside your business.

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, there'll be a future episode, probably
if not the next one, the one after that,

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where I'll talk about the issues with
third parties, if you are creating.

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AI generated content and you're using
him to meet contractual obligations,

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such as client agreements, that
the issues that can arise there.

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So stay tuned for that.

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And of course, if you have any
questions, you know where to find

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me and don't forget IP is fuel.