Artificial Intelligence Meets Copyright Law
- Christine Gaab
- 1 day ago
- 4 min read
Updated: 7 hours ago
How Do Copyright Laws Apply to AI Works?
Since 2023, the U.S. Copyright Office has been grappling with the impact of technology’s latest and greatest tool, Artificial Intelligence (AI). The US Copyright Act allows for protection of “original works of authorship fixed in any tangible medium of expression from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” The Office seeks to protect this freedom of creation and expression, but the level of involvement of AI adds some complications.
The Office defines AI as, “automated systems designed to perform tasks typically associated with human intelligence or cognitive functions.” AI has quickly become a tool adopted by many businesses and individuals, naturally bringing rise to fundamental legal questions. The Copyright Office has sought to balance the protection of human-created works intertwined with AI-generated elements, with the protection against harms created by AI deepfakes (explained further below) and works made wholly of AI outputs.
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Can AI-Generated Materials be Copyrighted?
Maybe.
Existing copyright laws may afford protections to works that contain elements of AI intertwined with sufficient “expressive elements” created by a human author. Distinguishing the use of AI as an assistive tool, rather than as a “stand-in” for human creativity helps to draw a line between what may and may not be barred from copyright protection.
The Copyright Office has stated that works of any kind generated entirely by AI are barred from copyright protection. The user-created prompts that output the AI-generated work do not constitute a sufficient amount of human contribution for a creation to be afforded protection.
On the other hand, works that contain a combination of both human and AI elements are to be evaluated on a case-by-case basis. It is likely that a work which is predominated by human-created elements, combined with a lesser amount of AI elements to supplement the author’s creation would be afforded copyright protection.
For example, an image generated entirely by AI seeking copyright protection would likely be barred. Alternatively, a photographer that used AI to remove a person in the background of a photograph they captured would likely be protected.
How is the Copyright Office Protecting Against Infringement by Deepfakes? The Office sees a need for new legislation, although existing laws provide some protection.
Although an individual’s personal creations may be entitled to copyright protection, the Copyright Office also recognizes that AI-generated deepfakes can be harmful. The Office defines a “deepfake” as a “video, image, or audio recording that has been digitally created or manipulated to realistically but falsely depict an individual.” For example, a political figure generating an AI recording of their opponent making a statement which harms their campaign and reputation is a deepfake. More often than not, the creation of these deepfakes are unauthorized and cause harm to the targeted individual.
There are currently protections that guard against these unauthorized uses such as rights of privacy/publicity, and other civil protections (such as defamation, false light, and/or appropriation claims in Pennsylvania), but the Office seeks to enact further legislation to ensure full protection from these deepfakes.
Are There Disclosures Required for Creators Using AI? Some states have passed legislation, but there are currently no federal guidelines.
To date, there has been no federal legislation passed to regulate disclosures of the distribution and creation of AI materials, such as anything created with popular platforms ChatGPT or Gemini. In the absence of federal guidelines, a handful of states have passed their own legislation compelling individuals to disclose the use of AI. Many states, including Pennsylvania, have introduced bills seeking to enforce similar disclosure requirements.
Pennsylvania’s current proposed bills:
House Bill 2660 - Would require creators or distributors to include a watermark on images, text or videos that were created in whole or in part with AI. The language included must read “Artificial Intelligence Generated Material.” Violators would incur a penalty.
House Bill 95 - Would amend the Unfair Trade Practices and Consumer Protection Law to include that a creation or distribution generated by AI lacking the required disclosure would constitute an “unfair or deceptive act or practice” and an “unfair method of competition.”
So What Should Small Businesses That Utilize AI Do? Always err on the side of caution.
A small business that utilizes AI should ensure the tool is used with honesty and take caution before publishing anything that is AI-generated. Although disclosures are not yet legally required, a small business could consider letting their clients or customers know when distributing a work made fully from AI. Additionally, it’s always important to understand and respect the intellectual property rights of others, even if there may be some AI involved.
This new area of law is rapidly changing. If you are unsure how to protect your creations in this ever-evolving environment, talk to an attorney for your specific needs.
DISCLAIMER: This blog post is meant for informational purposes only and does not constitute specific legal advice or create an attorney-client relationship. Readers should discuss their specific situation and considerations with an attorney.
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